The Committee for Agriculture and Rural Development is a Statutory Departmental Committee established in accordance with paragraphs 8 and 9 of Strand One of the Belfast Agreement and under Assembly Standing Order No 46. The Committee has a scrutiny, policy development and consultation role with respect to the Department of Agriculture and Rural Development and has a role in the initiation of legislation. The Committee has 11 members including a Chairperson and Deputy Chairperson and a quorum of 5.

The Committee has power:

• to consider and advise on Departmental budgets and Annual Plans in the context of the overall budget allocation;
• to approve relevant secondary legislation and take the Committee Stage of relevant primary legislation;
• to call for persons and papers;
• to initiate enquiries and make reports;
• to consider and advise on matters brought to the Committee by the Minister of Agriculture and Rural Development

The membership of the Committee since its establishment on 29 November 1999 has been as follows:

* Mr Dallat replaced Mr Denis Haughey on the latter's appointment as a Junior Minister.

APPENDIX 1: MINUTES OF PROCEEDINGS

APPENDIX 2: MINUTES OF EVIDENCE

APPENDIX 3: ANNEXES TO THE MINUTES OF EVIDENCE

1.

The Fisheries (Amendment) Bill was referred to the Committee for consideration in accordance with Standing Order 31(1) of the Northern Ireland Assembly after completing its Second Stage on 18 September 2000. Clauses 1, 2 and 9 have been considered by the Committee for Agriculture and Rural Development and Clauses 3 to 8 have been considered by the Committee for Culture, Arts and Leisure.

2.

The Minister of Agriculture and Rural Development made the following statement under section 9 of the Northern Ireland Act 1998:

3.

Furthermore, because the Bill affects reserved matters in the context of regulating the collection of shellfish from the foreshore and the creation of new offences, the Secretary of State has consented under section 10(3) (b) of the Northern Ireland Act 1998 to the Assembly considering the Bill.

4.

The prime purpose of the Bill is 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.

5.

5.1.

The Committee had before it the Fisheries (Amendment) Bill (NIA Bill 9/99) and the Explanatory and Financial Memorandum to the Bill, as introduced in the Northern Ireland Assembly on 26 June 2000.

6.

6.1.

The Committee decided that, in order to ensure members' fullest understanding of the issues surrounding the Bill's first two clauses, written submissions should be sought from interested organisations. The Committee wrote to five such organisations on 22 September 2000, inviting their views on the provisions contained in the two clauses and any amendments which they proposed. The organisations were:

• The Anglo-North Irish Fish Producers Organisation Ltd. (ANIFPO)
• The Northern Ireland Fish Producers' Organisation Ltd. (NIFPO)
• Northern Ireland Seafood Ltd.
• The Royal Society for the Protection of Birds (RSPB)
• The Strangford Lough Management Committee (SLMC)

6.2.

As a result of this approach a sixth organisation, the National Trust (NT), contacted the Committee seeking to make a submission and was invited to do so.

6.3.

Written responses were received from all of the organisations bar Northern Ireland Seafood Ltd.

6.4.

The Committee invited officials from the Department of Agriculture and Rural Development to appear before it on 29 September 2000 and members took the opportunity to raise a number of issues highlighted in the written submissions. The DARD official forwarded a letter on 3 October in response to some of the issues raised.

6.5.

During further consideration of the evidence on 6 October, the Committee agreed to adopt 3 recommendations proposed by the RSPB. Members further agreed to invite the five organisations to Parliament Buildings in order to further explore their submissions and to consider additional matters including:

• the compatibility of collection with conservation;
• the threat to the environment of hand-picking;
• the threat to areas other than Strangford Lough; and
• issues regarding the potential effects on the fishing fleet.

6.6.

Neither Fish Producers' Organisations felt they had anything significant to add to their written submissions and declined the invitation. The three others (RSPB, NT and SLMC) gave evidence to the Committee on 13 October. Two of these (RSPB and NT) submitted further written evidence as a result.

6.7.

Following the 6 October meeting the Committee also wrote to the Department on 11 October seeking clarification on a number of issues and DARD replied on 17 October. In response to a specific request by the Committee, DARD also forwarded, in a letter dated 20 October, the draft Regulations proposed once the Bill becomes law. The main issues dealt with in this way were:

• whether assurances could be given that individuals' rights to collect shellfish for personal use would not be affected;
• whether or not dive collection was covered by the Bill;
• the Department's objectives for the insertion of a new 2A in Clause 1 subsection 4, particularly with regard to the wide extent of references such as "geological", "archaeological" and "historic" features;
• the necessity for the inclusion of reference to the conservation of flora and fauna;
• whether the collection of seaweed had any adverse impact on the environment and if so whether this could be covered in the Bill;
• the need for, and proposed use of, powers to regulate sea-fisheries for environmental purposes, including any prospective application to the fishing fleet;
• whether compensation would be available to anyone affected by the Bill; and
• the Department's proposals for Regulations on the assumption that the Bill would become law.

6.8.

The Committee was satisfied with the responses received on these points.

6.9.

Full transcripts of the oral evidence taken appear as Minutes of Evidence in Appendix 2 to this Section of the Report. The submissions and correspondence appear as annexes to the Minutes of Evidence in Appendix 3.

7.

7.1.

The Department's officials appeared once again before the Committee on 20 October as the clause-by-clause consideration of the Bill began.

7.2.

In Clause 1, sub-section 3 the National Trust was concerned that there might be a misinterpretation that hand-picking of shellfish was not envisaged as falling under the legislation. The NT's contention was that the inclusion of an additional example, which specified hand-picking, would avoid any such problem. The Committee raised this suggestion with the DARD officials whose response convinced members that an amendment was not in fact necessary.

7.3.

The DARD officials advised the Committee that they had sought legal advice with regard to the definition of the word "foreshore" which was used in Clause 1 of the Bill. As a result of the advice the Department intended to move an amendment to the Bill replacing "foreshore" with "Northern Ireland inshore waters". Members agreed to consider this proposed amendment and asked that the Department provide the precise wording. Members agreed to consider this before completing its report to the CAL Committee.

7.4.

Members raised a proposal by the RSPB to make an amendment to Clause 2, sub-section 1 in 1A which, the RSPB believed, would make the clause consistent with 2(1)(e)(i). This would enable the authorised person to act in relation to a vehicle which was suspected to have been employed in fishing. The DARD officials believed that this was unnecessary and indeed inconsistent with existing powers relating to boats. DARD had written to the RSPB on this, but agreed to give further consideration to a further RSPB letter that they had just received. Members also agreed to delay their decision on this proposed amendment pending DARD's further consideration.

7.5.

Members discussed the two further amendments proposed by the RSPB which had been agreed for adoption by members on 6 October. The second of these, at 2(1)(c) sought to add wording to allow examination of fish collected by a vehicle. The Department's explanation that such powers already existed had been accepted by the RSPB and members agreed that an amendment was unnecessary. The first proposal, to add the words "or using" to the existing text at 2(1) 1A(b), was accepted by the Department and members agreed its adoption as a proposal from the Committee Stage of the Bill.

7.6.

Members agreed that the Committee should return to Clause 2 subsections 2 to 5 after the amendment to replace "foreshore" had been received and considered.

7.7.

The DARD officials raised another proposed amendment from the Department and sought the Committee's views on it. This related to Clause 9 and related to the coming into operation of the Bill. DARD wished to delete sub-sections 2 and 3 of this Clause as it had not been the intention to include them and DARD believed that the current wording would require an unnecessary delay in having to make an Appointed Day Order. Members agreed that this was the case and indicated that they would have no difficulty with the proposed amendment.

7.8.

The Committee resumed its consideration of Clauses on 17 November, the delay being caused by the requirement for DARD to propose its amendments to the Executive Committee. DARD officials were in attendance.

7.9.

In reconsidering the proposed change from "foreshore" to Northern Ireland inshore waters" (as at 7.3 above) the Committee was satisfied with the explanation given in the Minister's letter of 16 November. The DARD official present at the meeting offered further clarification and confirmed that the change was necessary to ensure that all of the areas potentially at risk from mechanical harvesting were covered in the definition. This was demonstrated to members using a diagram which is reproduced at Annex A of Appendix 3 to this section of the Report.

7.10.

The Committee then formally adopted the three amendments as proposals from the Committee Stage of the Bill. These would be proposed by the Department, and introduce and define the new term (Northern Ireland inshore waters), defined it (both in Clause 1) and (consequently) delete a definition of the foreshore in Clause 2.

7.11.

The Committee returned to the outstanding amendment proposed by the RSPB (as at 7.4 above). The Committee accepted the Minister's view (as outlined in her letter of 16 November) that the proposed amendment was unnecessary and would lead to an inconsistency with powers available in respect of boats. The Committee did not, therefore, propose this amendment.

7.12.

The Committee again considered the final amendment (to Clause 9) proposed by the Department. Members agreed with the rationale for the amendment, in that it would allow the Bill to come into operation when it is made, rather than having to await an Appointed Day Order. Members agreed the adoption of this amendment as a proposal from the Committee Stage of the Bill.

7.13.

Finally, members sought clarification on whether amendments should be proposed in order to make the Contents page and the title of Clause 1 compatible with the deletion of "foreshore" from the Bill. The DARD official's advice was that it was not appropriate to do so but that she would confirm this and inform the Committee.

8.

8.1.

The Chief Commissioner of the NI Human Rights Commission (NIHRC) wrote to the Speaker on 27 October expressing concerns about the human rights implications of the Bill.

8.2.

Members received a copy of this letter on 15 November and raised the matter with the Department at their meeting on 17 November. The DARD official advised members that she had received legal advice only that morning and that the conclusion was that there was no merit in the objections raised by the Human Rights Commission.

8.3.

The Department agreed to provide a copy of this advice to the Committee in order that it might complete its consideration of the Bill. Members agreed that it would not be appropriate to publish advice sought and received by the Department in the Committee's report.

8.4.

At a further meeting of the Committee on 24 November, members discussed the advice received by the Minister and additional advice provided to the Committee (see commentary at Section One, Annex O to the Minutes of Evidence). The Committee concluded that it was not persuaded that the concerns raised by the Human Rights Commission were sustained. The Committee agreed that it would not propose any amendment to the Bill as a result of these concerns.

8.5.

The Committee was also content that the advice provided by the Department in relation to amendments to contents and clause titles was sound and that the necessary technical amendments could be left to the office of legislative Counsel to complete before the Act is printed.

9.

9.1.

Clause 1, page 1, line 4, leave out 'or on the foreshore' and insert 'Northern Ireland inshore waters'

9.2.

Clause 1, page 2, line 2 at end insert -

9.3.

The Committee considers that Clause 1 of the Fisheries (Amendment) Bill (NIA Bill 9/99), as amended, should stand part of the Bill.

9.4.

Clause 2, page 2, line 13, after 'on' insert 'or using'

9.5.

Clause 2, page 3, line 3, leave out subsection (5).

9.6.

The Committee considers that Clause 2 of the Fisheries (Amendment) Bill (NIA Bill 9/99), as amended, should stand part of the Bill.

9.7.

Clause 9, page 4, line 31, leave out subsection (2) and (3).

9.8.

The Committee considers that Clause 9 of the Fisheries (Amendment) Bill (NIA Bill 9/99), as amended, should stand part of the Bill.

10.

10.1.

The Committee, on 19 October, 20 October, 22 November and 4 December considered the Bill. The Committee had before it the Fisheries (Amendment) Bill and the Explanatory and Financial Memorandum to the Bill (NIA Bill 9-EFM).

10.2.

The Committee wrote directly to six organisations that might have an interest in the Bill, inviting comments. The Committee received three written submissions (see Appendix 3). The Ulster Angling Federation (UAF) was concerned that Section 208 of the Fisheries Act (NI) 1966 would negate the effect of Clause 3 and that Section 208 may also contravene Directive 92/43/EEC - Conservation of Natural Habitats.

10.3.

The Minister for Culture, Arts and Leisure and officials from Inland Waterways and Inland Fisheries appeared before the Committee on 19 October to answer questions about the provisions contained in the Bill (a transcript of this evidence is included in the Report at Appendix 2).

10.4.

The Ulster Farmers' Union and the Ulster Angling Federation appeared before the Committee on 19 October to answer questions about the provisions contained in the Bill (a transcript of this evidence is included in the Report at Appendix 2).

10.5.

The Department of Regional Development, Water Service Agency and the Department of Agriculture and Rural Development, Rivers Agency appeared before the Committee on 20 October to answer questions about the provisions contained in the Bill (a transcript of this evidence is included in the Report at Appendix 2).

10.6.

The Committee sought further information from the UAF on the question of the Directive 92/43/EEC - Conservation of Natural Habitats. A response was received on 2 November (see Appendix 3). The Committee sought legal advice and discussed the UAF response and was content that Clause 3 does not contravene the Directive.

11.

11.1.

The Committee carried out a detailed clause by clause scrutiny of the Bill on 22 November (a transcript of this meeting is included in the Report at Appendix 2). Two Assembly legal advisers assisted the Committee in its deliberations. The Committee gave detailed consideration to the Clauses of the Bill and was satisfied that they would improve the management, protection and regulation of fisheries in Northern Ireland. However, the committee was concerned in respect of the effect of Section 208 of the Fisheries Act 1966 on Clause 3, subsection 5, the wording in Section 48 (1) (a) and (b) of the 1966 Act relating to the possession of wild smolt or fry and Section 59 of the 1966 Act which specifies details about gratings and lattices and the effects on fish farms.

11.2.

The Committee sought legal advice on amending Section 208 of the Fisheries Act 1966 and the other areas of concern mentioned above.

12.

12.1.

The Committee proposed the following amendment to the Fisheries (Amendment) Bill.

12.2.

Clause 3, page3,line 36 at the end insert -

(2) Section 208 of the principal Act be amended as follows -

'Nothing in this Act other than Section 48 shall prejudice the right of any owner to take material from any stream.'

Eamonn ONeill MLA
Chairperson

Mrs Hilda Hagan
Mr Chris Hunter
Mr Nigel Quinn

(Committee deliberations only. Also present: Mr K Pelan, Assembly Research Services)

Mr James Kerr (Chairman)
Ms Caroline Nolan (Strangford Lough Officer)

Mr David Thompson (Property Manager, Strangford Lough Wildlife Scheme)
Royal Society for the Protection of Birds (RSPB):
Mr Clive Mellon (Senior Conservation Officer)
Mr Neill Johnston (Assembly Liaison Officer)

Mrs Evelyn Cummins
Mrs Hilda Hagan
Mr Chris Hunter

Also present - Mr K Pelan, Assembly Research Services

Mrs Hilda Hagan
Mr Nigel Quinn

(Committee deliberations only)

Annex A: Diagram showing the inter-tidal area to be covered by the Bill

Annex B: Submission from the Northern Ireland Fish Producers Organisation (NIFPO)

Annex C: Submission from the Anglo-North Irish Fish Producers Organisation (ANIFPO)

Annex D: Submission from the Strangford Lough Management Committee (SLMC)

Annex E: Submission 1 from the Royal Society for the Protection of Birds (RSPB)

Annex F: Submission 2 from the RSPB

Annex G: Submission 1 from the National Trust

Annex H: Submission 2 from the National Trust

Annex I: Letter from the Department of Agriculture and Rural Development (DARD)
dated 3 October 2000

Annex J: Letter to DARD dated 11 October 2000

Annex K: Letter from DARD dated 17 October 2000

Annex L: Letter from DARD dated 20 October 2000

Annex M: Letter from the Human Rights Commission dated 27 October 2000

Annex N: Letter from DARD dated 16 November 2000

Annex O: Commentary on the letter of 27 October 2000 from the Human Rights Commission

The Committee deliberated.

Resolved: that the Committee should consider all the submissions made to it in more detail at the meeting on 6 October, with no witnesses to be examined. The meeting would be open to the public. Following this, the Department officials would be invited to attend on 13 October, during which consideration of Clauses 1 and 2 of the Bill would be undertaken.

The Chairman advised that one of the organisations which had responded to the Committee on the Bill, the RSPB, had invited members to a conference on agri-environment schemes in Scotland on 13 October.

Resolved: that members should contact the Clerk if they wished to attend.

The Chairman declared the meeting open to the public at 11.00.

Officials from the Department of Agriculture and Rural Development Fisheries Division, Mrs Hilda Hagan, Mr Nigel Quinn and Mr Chris Hunter were called in and examined.

The Chairman thanked the officials for their input and advised that they would be called again on Friday 13 October. The officials left the meeting at 11.50.

The Committee deliberated.

Resolved: that the Committee should invite those organisations which had made written submissions to give oral evidence on Friday 13 October and that the Department should be informed that officials would now be required on Friday 20 October. Also that the Committee should issue a letter to the Department outlining areas of concern and requiring clarification.

Mr James Kerr (Chairman) and Ms Caroline Nolan (Strangford Lough Officer) of the Strangford Lough Management Committee were called in and examined at 11.30.

Mr David Thompson (Property Manager, Strangford Lough Wildlife Scheme) of the National Trust was called in and examined at 11.55. Mr Paisley Jnr. declared an interest as a member of the National Trust. The witnesses left at 12.20.

Mr Clive Mellon (Senior Conservation Officer) and Mr Neill Johnston (Assembly Liaison Officer) of the Royal Society for the Protection of Birds (RSPB) were called in and examined at 12.20. Mr Ford declared an interest as a member of the RSPB. The witnesses left at 12.40.

The Committee was briefed by the Assembly's Researcher on the issues raised during consideration of the Bill and on the outcome of correspondence with the Department and others.

Mrs Evelyn Cummins, Ms Hilda Hagan and Mr Chris Hunter of DARD Fisheries Division were called in and examined at 10.35.

The Bill was read, clause by clause.

The Committee considered and agreed Clause 1 sub-section.

The Committee considered Clause 1 sub-section 2 and agreed to await receipt of the proposed amendment from DARD which would replace the use of "foreshore" in the Bill with "Northern Irish inshore waters", at which time the Committee would reconsider the clause.

The Committee considered and agreed Clause 1 sub-section 3.

The Committee considered and agreed Clause 1 sub-section 4.

The Committee considered and agreed Clause 1 sub-section 5.

The Committee considered Clause 2 sub-section 1

Motion: The Committee considers that Clause 2 of the Fisheries (Amendment) Bill (NIA Bill 9/99) be amended as follows:

Page 2, line 13, after ("persons in or on") insert ("or using")

[Ian Paisley Jnr.]

The question being put, the motion was carried without division.

The Committee agreed that it would not now propose the amendment to 1A (c)(i) as adopted at the meeting on 6 October 2000.

The Committee agreed to await further analysis by DARD of correspondence with the RSPB before deciding whether to propose the amendment to 1A (e)(i) as agreed to be adopted at the meeting on 6 October 2000.

The Committee considered and agreed Clause 2 sub-section 2.

The Committee considered and agreed Clause 2 sub-section 3.

The Committee considered and agreed Clause 2 sub-section 4.

The Committee considered Clause 2 sub-section 5 and agreed to await receipt of the proposed amendment from DARD which would replace the use of "foreshore" in the Bill with "Northern Irish inshore waters", at which time the Committee would reconsider the clause.

The Committee considered Clause 9 and concluded that it had no objection to the Department's intention to propose an amendment in order to delete sub-sections 2 and 3. The Committee agreed Clause 9 sub-section 1.

The Chairman thanked the DARD officials for their attendance and they left the meeting at 11.25.

DARD officials, Mrs Hilda Hagan and Mr Nigel Quinn, were called in and examined at 10.30.

The Committee deliberated. Resolved: that the Committee accepted the proposed definition and would therefore support the Department's proposed amendments.

The Committee considered Clause 1 sub-section 2.

Motion: The Committee considers that Clause 1 of the Fisheries (Amendment) Bill (NIA Bill 9/99) be amended as follows:

Page 1, line 4, leave out ("or on the foreshore") and insert ("Northern Ireland inshore waters").

[George Savage]

The question being put, the motion was carried without division.

The Committee considered Clause 1 sub-section 5.

Motion: The Committee considers that Clause 1 of the Fisheries (Amendment) Bill (NIA Bill 9/99) be amended as follows:

Page 2, line 2 at end insert -

("(5) For the purpose of this section -

(a) ("Northern Ireland inshore waters" means the area adjacent to the coast of Northern Ireland and to the landward of a limit of 6 miles from the baseline from which the breadth of the territorial sea is measured, up to the mean high-water mark of ordinary spring tides; and

(b) ("sea fisheries" includes any fishery within that area".")

[George Savage]

The question being put, the motion was carried without division.

The Committee re-considered Clause 1.

Motion: The Committee considers that Clause 1, as amended, should stand part of the Bill.

[Ian Paisley Jnr.]

The question being put, the motion was carried without division.

The Committee considered Clause 2 sub-section 5.

Motion: The Committee considers that Clause 2 of the Fisheries (Amendment) Bill (NIA Bill 9/99) be amended as follows:

Page 3, line 3, leave out subsection (5).

[George Savage]

The question being put, the motion was carried without division.

The Committee considered Clause 9.

Motion: The Committee considers that Clause 9 of the Fisheries (Amendment) Bill (NIA Bill 9/99) be amended as follows:

Page 4, line 31, leave out subsection (2) and (3).

[George Savage]

The question being put, the motion was carried without division.

The Committee reconsidered the amendment proposed by the RSPB to Clause 2 subsection 1, 1A (as it had agreed to adopt at the meeting on 6 October 2000).

Resolved: that the Committee accepted the Minister's view (as outlined in her letter of 16 November to the Committee) that the proposed amendment was unnecessary and would lead to an inconsistency with powers available in respect of boats. The Committee did not, therefore, propose this amendment.

The Committee deliberated on concerns raised by the Human Rights Commission in relation to Clause 2 of the Bill.

Resolved: that the Department would provide a copy of the legal advice provided to the Minister and that the Committee would consider this before deciding on whether to propose amendments.

The Committee questioned whether the Contents page and the Clause title (Clause 1) should be amended to reflect the change from "foreshore" to "Northern Ireland inshore waters". The DARD officials reported that advice received from the Office of Legislative Counsel was that it was not appropriate to do so.

Resolved: that DARD should confirm this position in writing to enable the Committee to assess whether additional amendments should be proposed.

The DARD Officials left the meeting at 11.10.

The Committee considered an outline draft input to the Report on the Bill.

Resolved: that the Committee's agreement to the Department's amendments, regarding the definition of the area covered by the Bill, would be best explained through a reference in the Report to the diagram used by DARD in its explanation to members. In addition, a copy of the diagram should be published as one of the Annexes to the Minutes of Evidence.

The Committee deliberated.

Resolved: that, in view of the legal advice obtained by both the Minister and the Committee, members were not persuaded that the concerns raised by the Human Rights Commission were sustained and the Committee would not propose any amendment to the Bill as a result of these concerns.

Resolved: that the Committee's formal consideration of clauses 1,2 and 9 of the Bill was now concluded.

Members considered the draft report.

Sections 1,2 and 3 read and agreed.

Sections 4.1, 4.2 and 4.3 read and agreed.

Section 4.4 read, amended and agreed.

Section 4.5 read and agreed.

Section 5 read, amended and agreed.

Resolved: that, should precedent suggest that it was inappropriate to publish legal advice in the report, a commentary on the advice to the Committee should be included as an Annex to the Committee's input to the Report.

Resolved: that, in view of the advice received, the Committee need take no further action regarding the changes to the contents page and Clause heading necessitated by the substitution of "Northern Ireland inshore waters" for "foreshore" in the Bill.

Resolved: that the Committee's input to the CAL Committee report should be printed.

Mrs H Hagan
Mr N Quinn
Mr C Hunter

1.

The Chairperson: I declare this meeting open to the public. Welcome. I take it that you wish to make a presentation to us before we put any questions to you.

2.

Mrs Hagan: Thank you very much. I am Hilda Hagan from the Fisheries Division of the Department of Agriculture and Rural Development. My colleagues are Nigel Quinn and Chris Hunter. We have been working on the amendments to the Fisheries (Northern Ireland) Act 1966 in front of you. Their purpose is to give the Department powers over fishing from the foreshore and to regulate sea and foreshore fishing for environmental purposes. The two amendments go hand in hand. Currently, the Department has no power to regulate the foreshore, so we must extend our authority to cover it. Neither do we have powers to regulate fishing for environmental purposes.

3.

The collection of wild shellfish from the shores of Strangford Lough straddles the two amendments and was to some extent the reason for their formulation. Evidence suggests that the use of mechanised harvesting equipment to collect shellfish in recent years has been detrimental to the wildlife which inhabits the foreshore. Conservation interests such as the Royal Society for the Protection of Birds (RSPB) and the National Trust raised concerns about the potential ecological effects of ongoing extraction by that type of equipment at the rate at which it was being undertaken. A number of bird species are dependent on a continuous supply of wild shellfish as a source of food, particularly during the winter season.

4.

The Bill aims to give the Department the power to make regulations to control the collection of wild shellfish on the foreshore, prohibiting fishing by means of vehicles or equipment of a specified description in a specified area, either with or without limitation of time. In relation to the environmental prong of this amendment, the Bill aims to provide the Department with powers to regulate fisheries in or on the foreshore for the purpose of conserving marine or coastal environments or flora and fauna dependent on them. To some extent, this has its origin in the European Community directive on the Conservation of Natural Habitats and Wild Flora and Fauna 1992, which was implemented in Northern Ireland by a set of regulations laid down by the Department of the Environment in 1994, under which the Department of Agriculture and Rural Development (DARD) has a statutory obligation to exercise its existing functions for the protection of the marine environment. This amendment will build that obligation into the Fisheries (Northern Ireland) Act 1966.

5.

The Bill itself will not actually control the collection of wild shellfish. It will simply give the Department a regulatory power, which will be exercised through subordinate legislation. But such subordinate legislation cannot be introduced until we have the power in the primary legislation. When regulations are made, they will be the subject of public consultation. At the moment, it is proposed that these regulations will deal only with Strangford Lough, where the problem has occurred, and that they will prohibit fishing for shellfish by means of mechanical harvesting. The Bill also proposes to extend the existing powers of authorised officers to ensure that they can regulate and enforce. It also ties in offence provisions as well. That is basically the gist of the proposed amendments.

6.

The Chairperson: Many of us at this table are ignorant of these things and therefore my first two or three questions may seem to you very simple, but they are not simple. Who legally owns the foreshore? The adjoining landowner?

7.

Mrs Hagan: A mixture of people can own the foreshore. The Crown Estate could own large sections of the foreshore right around the coast of Northern Ireland. But the National Trust also own a portion of the shore of Strangford Lough, through inheritance. I think it inherited it from the Londonderry Trust some years ago.

8.

The Chairperson: What is the percentage of Crown ownership and National Trust ownership?

9.

Mrs Hagan: I am not sure if I can give you a precise figure, but -

10.

The Chairperson: Can you get us the precise figure?

11.

Mrs Hagan: We can try. My guess is that, by far and away, the largest proportion of the entire foreshore around the coast of Northern Ireland is Crown owned.

12.

The Chairperson: I am always suspicious of the Government taking powers to interfere with private ownership and with what has been carried on from generation to generation. Can you give us an assurance that this will not in any way inhibit people who gather shellfish for their personal use?

13.

Mrs Hagan: Absolutely. It is not our intention at all that this amendment be used for that purpose. It is really to control large-scale collections of wild shellfish by mechanical harvesters.

14.

The Chairperson: So if a person went out with a spade, he could do that?

15.

Mrs Hagan: You can still do that.

16.

The Chairperson: That has been going on for generations round there, and it is from there that the strong lobby has come to me personally.

17.

Mr Paisley Jnr: What if a large group of men went down with shovels and extracted large numbers of these shellfish? Will the Bill have any impact on that?

18.

Mrs Hagan: The Bill will allow us to regulate the collection by means of any vehicle or equipment. If it was deemed that the large-scale collection via shovels or spades was having a detrimental effect on the ecological balance of the foreshore, we would have the power to regulate it.

19.

Mr Paisley Jnr: That is not contained in the Bill though.

20.

Mrs Hagan: The inclusion of the word "equipment" would allow us to cover shovels.

21.

Mr Paisley Jnr: But that would also restrict an individual with a shovel, would it not?

22.

Mrs Hagan: No, we would have to be very careful about how we worded regulations to ensure that it was the intensive nature of the operation that was being regulated and not an individual's right to go out with a bucket and spade.

23.

Mr Paisley Jnr: I understand that you are preparing the draft regulations. Perhaps they have been prepared. Can we see them?

24.

Mrs Hagan: We have a draft in the Division because we want to be ready to put that draft to solicitors and out for public consultation as soon as this power is acquired. We cannot jump ahead of that; we do not have the power yet.

25.

Mr Paisley Jnr: Right. So you are accepting that, if this Bill goes through, the regulations themselves are not ready to be brought into effect.

26.

Mrs Hagan: That is right.

27.

Mr Paisley Jnr: We are passing the Bill before we see the regulations?

28.

Mrs Hagan: That is right. But you will have the opportunity to scrutinise the regulations in full when they are drafted.

29.

Mr Paisley Jnr: Would we not be better seeing the regulations first?

30.

Mrs Hagan: No. The normal procedure is to make the amendment to the primary legislation to give us the power to make the regulations in the first place. We have to go through that process before we can issue a set of regulations that would implement a power that we do not have at the moment.

31.

The Chairperson: Has any research been done that would support the concerns of conservation groups that have been raising this issue with us, or is the Department fighting by the precautionary principle and taking action to prevent potential adverse affect on the environment?

32.

Mrs Hagan: I am not aware of any published research that I could refer you to, but I know that research has been done in other parts of the UK, for example, in Scotland and Wales, where mechanical harvesting was taking place in the early '90s. It was on the basis of that that a lot of the environmental organisations in Northern Ireland felt that if mechanical harvesting was going to be a feature of life in Northern Ireland, we had better act before it caused an irrecoverable disturbance to the ecological balance of the foreshore. We are taking the precautionary approach in this instance. We do not have hard empirical evidence on which to base it.

33.

The Chairperson: What is the present extent of commercial fishing on the foreshore for shellfish? Does it comprise individuals or groups, and how many are there?

34.

Mrs Hagan: The collection of wild shellfish from the foreshore of Strangford Lough - the only area that I am aware of where this has taken place by mechanical harvesting means - was undertaken by one operation. This was a business which had three or four family members involved for a four-or-five-week period during the summer of 1998. I am not aware of any other business on any other part of the foreshore in Northern Ireland where there is this type of operation.

35.

The Chairperson: You said in your earlier remarks that only Strangford Lough was involved. Are there no other parts around the coast where shellfishing takes place?

36.

Mr Hunter: Yes. Cockle harvesting takes place in Dundrum Bay. This is harvesting by hand, not mechanical harvesting.

37.

The Chairperson: Is that extensive?

38.

Mr Hunter: No, it is on a fairly small scale. There is also commercial hand harvesting of cockles in Strangford Lough at present.

39.

The Chairperson: Is there any in Carlingford Lough?

40.

Mr Hunter: No, not to any commercial extent.

41.

Mr Bradley: I understood that there was commercial fishing in Carlingford Lough and that an application for a factory on the lough shore is currently being processed.

42.

Mr Hunter: Yes. There is commercial shellfish cultivation, but not cockle harvesting. I was referring specifically to cockle harvesting. There are a number of fish farms in Carlingford Lough producing mussels, Pacific oysters and Manila clams.

43.

The Chairperson: There is no comparison between that and Strangford?

44.

Mr Hunter: No.

45.

Mr Savage: What procedures are in place to allow the Department to regulate the collection of shellfish on the foreshore?

46.

Mrs Hagan: There is nothing in place. No regulatory power exists in our legislation at the moment. I do not know if Members have a copy of the relevant section of the Fisheries Act (Northern Ireland) 1966. Section 124 gives the Department the right to make regulations as are expedient for management, conservation, protection and improvement. We have some spare copies of the full Act for anyone who wants one.

47.

The Chairperson: We could do with them. Perhaps you could supply us with a copy for each Member?

48.

Mrs Hagan: No problem.

49.

Mr Savage: Do you have to bring your proposals before us before you can put those procedures into place?

50.

Mrs Hagan: Yes, that is right. We have to amend the primary legislation first to give us the power to regulate the foreshore. Then we will bring forward a piece of subordinate legislation, which will detail where we are going to prohibit mechanical harvesting. The details, such as if there is a time limit and if there is a prohibition on a particular means of taking fish, for example, mechanical harvesting, will all be in the subordinate regulations. These will also come forward to the Committee for scrutiny under the procedures for subordinate legislation.

51.

The Chairperson: Will these regulations be negative or positive?

52.

Mrs Hagan: I think they will be subject to affirmative resolution.

53.

The Chairperson: It is very hard to kill a negative on the form of negation. However, the Assembly has to affirm affirmative legislation.

54.

Mrs Hagan: That is the way that the large bulk of subordinate legislation is processed.

55.

The Chairperson: Unfortunately not. In Westminster you have to pray against it and your prayers are seldom answered.

56.

Mr Savage: Once these regulations are in place will you have to take on extra staff to police them?

57.

Mrs Hagan: We do not envisage having to do that. The foreshore area has a range of competent authorities that are responsible for a number of activities, including environmental health, so a range of Government authorities will be keeping an eye on the foreshore. We do not envisage any difficulty in meeting our responsibilities. However, Fisheries Division has been under pressure because of the heavy workload that has arisen from the cod recovery plan over the last year or so. We are conducting a review of our staffing needs, so we have to wait for the outcome of that. If a need for increased staffing levels is identified, we will go through the usual process for getting more staff.

58.

The Chairperson: You said that you thought that the majority of Bills were affirmative. I checked with the Clerk and over here the majority are negative. You need to let us know if this will be negative or affirmative. If it is subject to negative resolution, we will not be able to change it. If it is subject to affirmative resolution, the Assembly has the right -

59.

Mrs Hagan: We will find out for next week. I based my earlier comments on very recent scrutiny of the Foyle Fisheries legislation, which is subject to -

60.

The Chairperson: The tendency of the Assembly is to try to get rid of the many negative resolutions that mainly came in when Stormont was abandoned. At that time everything was done by negative resolution. The wheels of the House got blocked up, which meant that many things were passed on the nod.

61.

Mr Ford: You have answered the next prepared question. You mentioned that a spade or a shovel would fall within the definition of equipment, so that would be an issue of scale. Why is this being done by secondary legislation, given the expressed concerns? Will we have an unnecessary delay if we have to produce regulations for consultation after the legislation is passed? Why has the Department not considered doing this by an amendment to the primary legislation?

62.

Mrs Hagan: The standard procedure is to keep the face of the primary legislation as clean as possible. That means that you put into primary legislation a power to regulate, but you do not cloud the issue by including every aspect you would wish to have in a regulation. That is the convention in Northern Ireland. It is the subordinate legislation that puts the flesh on the bones of the regulatory power. The regulations are sitting on the stocks in the Department ready to go for clearance with the solicitor, and they should issue for consultation shortly. While having to comply with legal convention, we are taking as many steps as possible to ensure that the process is not delayed.

63.

Mr Ford: You said that the legislation would only apply to Strangford Lough at this stage. Is that in keeping with the precautionary principle, or should you include the rest of Northern Ireland?

64.

Mrs Hagan: The issue is two-fold. This legislation is in keeping with the precautionary principle, but a court would take a very dim view if we applied for a power to cover the whole coast of Northern Ireland when we are only aware of problems at Strangford Lough. The court would expect us to make reasonable legislation in line with our identified needs. If it transpires that there is a problem in another area, we will have the primary power to make another piece of subordinate legislation to deal with that immediately.

65.

Mr Kane: First, does the Department intend to prohibit fishing on the foreshore or merely to restrict it for environmental reasons? Secondly, does the Department have any statistics to indicate the number of jobs that will be affected by prohibition on foreshore fisheries?

66.

Mrs Hagan: The intention is to prohibit the collection of shellfish from the foreshore by mechanical harvesters. So it will be a prohibition, not a restriction. It is proposed that that will be without a time limit. In other words, we will not be saying that it will be for July, August or September; it will be a blanket ban on collection by mechanical harvesters, and that will be defined within the regulation.

67.

Your second question related to the numbers of individuals involved. As far as we are aware there is only one business involved in Strangford Lough, which employs three or four family members for a short period of time.

68.

Mr Kane: I will be happy if we can differentiate between industrial harvesting and those taking shellfish for personal use.

69.

The Chairperson: That has been made clear to us.

70.

Mr Armstrong: This restriction may encourage people not to take shellfish from the foreshore so will there be more shellfish than required on the foreshore - might it become an environmental issue of overstocking?

71.

Mrs Hagan: It is possible that if we ban mechanical harvesting there will be an increase in hand-picking, for example. We will have to look at that at the time and see if there is going to be an ecological effect on the foreshore. Perhaps Mr Hunter could clarify that.

72.

Mr Hunter: The shellfish stocks are self-limiting by their natural environment. Cockles, for example, are filter feeders, that is they filter plankton from the water column when the tide is in. That only supports a given weight of cockles in any area, so if there is a large population, the water column will support it. There is a natural restriction in the system.

73.

Mr Paisley Jnr: I do not think that the Bill will achieve its aims as it is currently drafted. In particular, we have focused on mechanical harvesting whether by bucket and spade or a tractor with a device fitted to it. If 20 or 30 men came down to the beach on another day and just used their hands to collect the shellfish, that could not be regulated for, could it?

74.

Mrs Hagan: Not under this amendment. It only deals with vehicles and equipment.

75.

Mr Paisley Jnr: It would have no effect if people took it upon themselves to do this?

76.

Mrs Hagan: I would be very surprised if 20 or 30 people hand-picking could have anywhere near the same impact as a mechanical harvester that can pick up to 4,000 kilos of cockles and mussels. I would want to employ them on my farm.

77.

Mr Paisley Jnr: I would like to ask you about clause 1 subsection 4(a) where it says in relation to the amendment of paragraph 2A of the Fisheries Act:

"The conservation or enhancement of the natural beauty or amenity of marine or coastal areas."

78.

What does the Bill mean by "marine" - does this extend into the natural fishing areas?

79.

Mrs Hagan: The marine and coastal areas are understood to mean the entire coast, the foreshore and the sea.

80.

Mr Paisley Jnr: So both extend into the natural fishing areas?

81.

Mrs Hagan: You mean the natural fishing areas at sea?

82.

Mr Paisley Jnr: Yes, that would put great restrictions on fishermen, would it not?

83.

Mrs Hagan: We would only be using this particular amendment to deal with fishing activities if they were causing detriment to the marine or coastal environment.

84.

Mr Paisley Jnr: It does not say that that is the purpose of the amendment?

85.

Mrs Hagan: If you read the insertion of 2A within the overall purpose of section 124 of the Fisheries Act:

"the Department may make such regulations as appear to the Department to be expedient for the management, conservation, protection and improvement of sea-fisheries."

86.

Mr Paisley Jnr: So it is really a precautionary measures; is that what you are saying? It is not necessarily one that would be employed right away. We would receive quite a lobby on that - that these powers could, on interpretation, be quite draconian against some fishermen.

87.

Mrs Hagan: We would only use this power to regulate a fishing activity for environmental purposes. We would not use this power to regulate other activities in or on the foreshore or the sea. The Department is not in a position, for example, to regulate horse riding on the beach or on the foreshore as it is not a fishing activity.

88.

There are other competent authorities in Northern Ireland, who have responsibility for activities such as this. Our intention with this amendment is to regulate any fishing activity that causes a detriment of an environmental nature to the marine or coastal environment.

89.

The Chairperson: How far does the foreshore go out into the water?

90.

Mrs Hagan: I knew someone would ask this eventually.

91.

The Chairperson: These are simplistic questions from ignorant people, but very important nonetheless.

92.

Mrs Hagan: It is not a simplistic question; it is a very interesting question and one that is not easily answered.

93.

The Chairperson: That is why I am asking it.

94.

Mrs Hagan: I will try my best to answer it.

95.

The Chairperson: I am sure you will.

96.

Mrs Hagan: The foreshore has a commonly accepted definition in law. It was defined here in Northern Ireland by a judgement that said "it is that portion of the realm which lies between the high water mark and the low water mark of ordinary tides, occurring between spring and neap tides and is alternatively covered and left dry by the flux and reflux of the tide."

97.

Mr Paisley Jnr: Straightforward.

98.

Mrs Hagan: Could you pass round a copy of the diagram?

99.

The Chairperson: If a person went out into that water, just a little, and used a mechanical digger, what would happen under this Act?

100.

Mrs Hagan: This is why we are concerned at defining the foreshore and the inter-tidal area as seen by this simplistic chart. The area identified on the chart as the foreshore is the portion of the realm between high water mean median tide and low water mean median tide. The tide does not come in to the same place, nor does it go out to the same place. There are higher tides and lower tides than that. The lowest portion of the tide is the lowest astronomical tide, so that portion of the foreshore seabed lies between the low water mean median and lowest astronomical tide. This is referred to as the inter-tidal area, but it is not actually included in the commonly accepted definition of the foreshore. Our legal advisers, our fisheries inspectors and we are trying to ensure that whatever regulations we make will cover all of this area and not leave that loophole. Our legal advisers are almost 100% sure that the definition of the sea itself would cover the inter-tidal area, the sea's being a movable feast. Therefore, if the sea covers the inter-tidal area and the foreshore is as defined in that judgement, we are home and dry. If it does not include that area, we must ensure in this amendment that people can clearly see what the foreshore is and what the inter-tidal area is and that it is this area that we are in the position to regulate. I hope the chart clarifies that, because it is not an easy thing to come to terms with.

101.

The Chairperson: So you are really increasing the foreshore.

102.

Mrs Hagan: We will not call it the foreshore.

103.

The Chairperson: It is the basic intertidal area included in the foreshore, down below it.

104.

Mrs Hagan: But it may already be covered by the definition of the sea.

105.

The Chairperson: When will this advice be available?

106.

Mrs Hagan: I hope to sort this out before we meet again next week. I will then be able to say conclusively whether or not we need to include something.

107.

The Chairperson: We will not be meeting with you next week. However, on the other question, what would happen if a mechanical digger came into the water below that intertidal area and started shovelling up?

108.

Mrs Hagan: We would be in a position to regulate it.

109.

The Chairperson: Even if he were right out beyond the lowest astronomical tide?

110.

Mrs Hagan: I do not think that that would be possible.

111.

Mr Hunter: It would be very unlikely for someone to use equipment in that way, but the legislation would regulate it with reference to method rather than to where a person was operating, so even if he were operating in two or three inches of water, he would still be committing an offence.

112.

The Chairperson: If he were beyond that point? How would that be? If he goes beyond the lowest astronomical tide, he is not on the foreshore as you have defined it and, therefore, not covered by the regulations.

113.

Mr Quinn: The Department already has the powers to regulate in the sea, and we are extending those powers to allow the Department to regulate the foreshore as well. We are extending the definition because the foreshore cannot now be regulated.

114.

Mr Ford: This diagram makes me even less clear than I was. To what point is the sea currently defined in legislation and is the current definition of the foreshore only the middle third of those three sectors?

115.

Mrs Hagan: Yes. The current definition of the foreshore is as shown on the diagram. We have to determine with our legal adviser whether or not the current accepted definition of "the sea" comes right up to low water mean median tide. If it does, that is covered by our existing power to regulate in the sea. This power will then be extended to regulate the foreshore. If it is not, we will have to tie in a definition of the inter-tidal area with that of the foreshore to make it perfectly clear within this legislation.

116.

Mr Ford: So, if that is the case, we need to change the definition in the primary legislation.

117.

Mrs Hagan: There is no definition of the foreshore in the primary legislation.

118.

Mr Ford: Sorry, elsewhere in primary legislation you read the definition.

119.

Mrs Hagan: I was not reading from primary legislation. There is no definition of the foreshore anywhere in primary legislation. It is commonly accepted.

120.

Mr Ford: Right. But at this stage there is no definition and no regulation above the high water medium tide that is taken to be land.

121.

Mrs Hagan: Yes, and we would have great difficulty trying to regulate that because we do not own everything. We may be impinging on private property rights, so we have to be very careful about trying to extend beyond that.

122.

Mr Dallat: If the Department has to restrict fishing for environmental reasons, are there any plans to compensate fishermen who would be involved?

123.

Mrs Hagan: No, at this stage we have no plans to compensate. One business was involved for a four-to- five-week period during 1998, so we do not see it as necessary to pay compensation.

124.

Mr McHugh: In relation to the diagram, how far do the shellfish go on the foreshore and into the water? Could somebody dredge from a boat for the same reason?

125.

Mr Hunter: Not in Strangford Lough. The common method of fishing for cockles is by suction dredger, and a prohibition was introduced in 1993 against suction dredging in Strangford Lough.

126.

Mr McHugh: It seems it is only in Strangford Lough. Are there other areas where people might be dredging for other reasons and causing slippage, thus affecting the solid base of the foreshore?

127.

Mrs Hagan: If someone was dredging for another purpose and was having a detrimental effect on the foreshore, the amendment we are proposing here could allow us to regulate.

128.

Mr Quinn: We already have powers to regulate it if it is occurring in the sea. This amendment extends that existing power to include the foreshore.

129.

Mr Hunter: Also, a non-fisheries activity, such as dredging for aggregates, is already covered under the Food and Environment Protection Act 1985, which is regulated by the Environment and Heritage Service.

130.

The Chairperson: Is there no way in which they could breach that yet still be let off the hook by just going beyond that particular part? Do you have powers to stop them when they are in the sea?

131.

Mrs Hagan: Yes, we have powers in the sea already, and we are extending those to cover the foreshore and to ensure that if it has an environmental effect, we can take action.

132.

Mr Molloy: I have two questions. First, what type of mechanical machine is used, and what is its ability to dredge - I have never actually witnessed it. My other concern is about restriction and the use of the force. For instance, at Lough Neagh, when they lowered the lough, questions were raised about whether the piece of ground between the new water level and the original foreshore could be developed. I am concerned that private land users could have their entitlements restricted by this regulation in some way. Would that not be a forced curtailment of people's rights? Also, if 100 people individually wanted to go along with a bucket and spade, how would you control that - there is nothing to stop everybody going at the same time when they go as individuals?

133.

Mr Hunter: Generally a modified potato harvester is used for mechanical harvesting around the UK. In relation to a number of individuals collecting, there are instances, for example, in south Wales, of a fairly substantial commercial industry based on hand- picking after the local sea fisheries committee had prevented the use of harvesting by mechanical means. Those were areas that had been designated as special protection areas or areas of conservation under environmental legislation. So it is possible for the two activities to sit side-by-side with each other.

134.

Mr Molloy: On the issue of ground that is in private ownership and the restrictions on that, I would have reservations about giving authority to anyone to impose further restrictions. Do you see any means of accommodating the landowner in a situation like that?

135.

Mr Hunter: Most of the foreshore is state-owned. There are cases in Strangford where the National Trust owns large portions of the northern end and the Lecale Estate owns a small portion at the southern end. I do not think that the National Trust would object to these regulations. It is not a case of the Department's trying to limit the rights of a landowner, rather it is a matter of trying to limit the effects and the methods of commercial fishing. It is not a case of a landowner's trying to exploit the shellfish stocks - it is about another person coming on to that landowner's land without his permission and carrying on a commercial fishing act.

136.

The Chairperson: From 2 October, European human rights legislation has to govern everything that is decided. Our courts will not decide it; it will be decided in Europe. From 2 October the guillotine comes down on all legislation. That is why in Westminster, although it has not been done here, everything that is put before the House has attached to it, a statement saying that the Minister presenting does not believe that this is in anyway inconsistent with the European Bill of Rights. I do not know whether that will come in here after 2 October, but that is the law. I am not a European backing that, but that is what is going to happen. It does not matter what legislation is put through anywhere. The final test will be - [Interruption]

137.

Mrs Hagan: If we were to make a set of regulations that straddled across an area of the foreshore that was privately owned, we would have to do that in very close consultation with the owners. We would never do that without close consultation.

138.

Mr Bradley: I refer to the pending consultation process. Will local government be consulted? It is my understanding that councils are custodians of substantial sections of the foreshore.

139.

Will local government have any role to play in the foreshore legislation contained in the Act, and will any other Department have a role to play?

140.

Mrs Hagan: Yes, it will. Any consultation will be widespread; we are talking about consulting hundreds of individuals and organisations on any piece of legislation that we make on fisheries.

141.

The Chairperson: May I just confirm that that applies to making the regulations as well as to what you are doing now?

142.

Mrs Hagan: Yes, that is right.

143.

Mr Bradley: Does local government have any role to play regarding the legislation contained in the Act?

144.

Mrs Hagan: This amendment to the Fisheries Act is to give the Department of Agriculture powers to make regulations and powers to enforce those regulations. That would not directly give any powers to anyone else in local government, but the convention is that the competent authorities with responsibility for the foreshore work together.

145.

Mr Bradley: Your opening remarks referred to the Wildlife Trust, but you did not mention councils and custodians of the foreshore. Will the councils still retain that custodial role?

146.

Mrs Hagan: Yes, they will. We will not be impinging on their custodial rights at all. But the Department of Agriculture and Rural Development is the competent authority on the foreshore as far as fishing is concerned.

147.

Mr Bradley: Will the Department of the Environment have a role to play?

148.

Mrs Hagan: Yes, we will be working in close consultation, and in practical terms we work with the Department of the Environment as well on many aspects of fisheries policy.

149.

Mr Paisley Jnr: I want to go back to this matter of regulation. Can you advise the Committee about the timescale between this Bill's receiving Royal Assent - probably some time before Christmas - and when we will see the regulations? When will the regulations be ready?

150.

Mrs Hagan: I cannot give you a specific time. I will have to go back and look at the legislative procedures for, when you are making subordinate legislation, you are very much in the hands of the procedure that lays down the various stages that must be gone through. As far as I am aware, there are no facilities to allow the procedures to be jumped through, except in very exceptional circumstances. Therefore, we are tied to the procedures, but the regulations are drafted; they are on file; and they are ready to go. As soon as this becomes law - I would even say as soon as it is passed here, and before Royal Assent - we will be moving to get legal clearance, so that the regulations are as far down the road as possible.

151.

Mr Paisley Jnr: Can we see these draft regulations this week?

152.

The Chairperson: The answer is no.

153.

Mrs Hagan: They are drafted and on file, but there is still some work to be done on them. They have not been cleared by the legal adviser. We are not sure how and whether "the foreshore" is going to be defined. Such things need to be ironed out before we can produce a set of draft regulations. It would then make sense for the Committee to scrutinise them.

154.

Mr Paisley Jnr: You will understand our reluctance to pass a measure when we have no idea what the regulations are going to say. I am sure that you can understand why we are questioning it.

155.

Mrs Hagan: I can understand why you are questioning it, but surely that happens all the time when Departments take primary powers that allow them to regulate a function.

156.

The Chairperson: We are very persistent about having clarity. I have always detested this system: we vote for the sort of clean-faced Bill that you talked about, and then they can make any regulation that they want. It is very unfair that legislators do not know what the regulations are going to be. I think the Committee will agree with that. I would like to see what you are going to do after we give you these powers - because you could really do anything.

157.

Mrs Hagan: You will see what we are going to do. You will have full powers to scrutinise the subordinate legislation once this amendment is made.

158.

The Chairperson: As long as you stick to affirmative resolution: If it is a negative resolution, it is useless. That gives the Department a clean sweep.

159.

Mr Armstrong: It does not mean very much afterwards.

160.

The Chairperson: I have to bring in the Vice- Chairperson, and then we will have to draw matters to a close.

161.

Mr Savage: Does this shell fishing take place at specific times of the year, or does it happen daily? All the emphasis has been on Strangford Lough. Are there other areas along the foreshore that we cover as well?

162.

Mrs Hagan: There are certainly lots of other areas of the foreshore where there is the potential to use a mechanical harvester to extract quantities of shellfish. What was the first part of your question again?

163.

Mr Savage: Does this take place? Are there special times of the year when this happens?

164.

Mr Hunter: Shellfish harvesting takes place throughout the year. What tends to happen is that shellfish spawn in late spring and sometimes summer. The condition of the meat is worse because of this so you often get a fall in harvesting of wild shellfish during that time. It can take place any time during the year.

165.

Mr Kane: In relation to clause 7, are the effects of pollution on our waterways reversible at all?

166.

The Chairperson: Excuse me, that is not really our concern. You do not need to answer that question because that is a matter for another Committee. There is only one final question that needs to be asked. Are you considering licensing people to do this fishing in your regulations?

167.

Mrs Hagan: No, we are not. At the moment the regulation proposed will simply ban the collection of wild shellfish by mechanical harvester.

168.

The Chairperson: There is no suggestion that they will impose a heavy licence fee? - the Department is very good at that. We do not need to meet next week because we are going to do our own thing without you. We would like you back the following week. Will you get us more information on some of the questions we looked at, especially about private ownership and ownership of the foreshore?

169.

Mrs Hagan: To clarify, the area you would like further information on is the actual procedure for making subordinate legislation and confirmation that it will be subject to affirmative resolution. You would also like some detail on the proportion of the foreshore that is part of the Crown Estate and the proportion that is in private hands, and you want some information on a third area.

170.

The Chairperson: How soon can we see the draft regulations? I agree with you that even after the regulations are drafted you have to have your consultation period. More people will be interested in the actual regulations than in this first thing. Thank you very much.

Mr K Pelan

171.

The Chairperson: Some of the evidence from the Department is not very clear. In light of what you are saying, we will have to go back to them and seek assurances. The secondary legislation was absolutely wrong. It was all negative. The Assembly have a positive vote in dealing with regulations. All the Committees have had that problem before. This Bill only gives us half the picture, because it contains no regulations. We have been informed that the regulations are written, typed up and ready - but what are they? We would be anxious to probe further. If they are all typed up and ready, how are they going to impact? The regulations really are the heart of the Bill. We are just laying the foundations, but the building will be formed from regulations. We need to go back to the Department and make it perfectly clear that we would be far happier having positive resolutions that the Assembly can approve. We would have very little power, having passed this Bill to deal with the regulations built upon it. That is very important, because regulations are important.

172.

The Committee Clerk: As regards the point about the negative resolution. To change the nature of these regulations, or these rules, would require an amendment to the Fisheries Act and that would have nothing to do with the Bill in front of us.

173.

The Chairperson: Why do we not have an amendment to the Fisheries Act?

174.

The Committee Clerk : We are not dealing with the Fisheries Act.

175.

The Chairperson: I know, but we could make recommendations. It will be like all the regulations that pass through Parliament that nobody ever sees? When issues are raised subsequently, the person is told that they are negative resolutions and that he has no say in them. What is the use of passing this Bill when we would have to fight against regulations with which we disagree?

176.

The Committee Clerk: The Committee could, within thirty days, seek to have the regulations annulled if it did not agree with them.

177.

The Chairperson: In practice, in the House of Commons, 99% of regulations go through and only 1% are stopped. The Department would be very anxious for us not to interfere. We are supposed to be scrutinising what the Department does. We are now giving them a blank cheque. We were told that the regulations were all positive, but I think we have found out that they are all negative. The Committee was completely misled. However, I do not think it was done deliberately.

178.

The Committee Clerk: With regard to the point about negative resolution, it is not entirely appropriate to draw a direct comparison with Westminster, where Committees and Parliament are obviously dominated by the Government in power. In this Assembly, the Committee could make a motion through the Assembly to have any statutory rule annulled, and the members of this Committee would take part in the debate and try to convince the Assembly to have the regulations annulled. There is a real power for this Committee.

179.

The Chairperson: But you know perfectly well the way legislation is changed when it is drafted. After that it is very difficult to change what is set in stone. Some of us have tried that for years and have never got anywhere. We should now be pioneering the fact that this Assembly would seek to make as many of these regulations positive so that there is time to change them. It is very difficult to receive sentence on your business, in that regulations will be passed, and before you know it they are passed.

180.

The Committee Clerk: The Departments are committed to pre-drafting consultation on Statutory Rules, and that procedure is followed. The Committee would have the opportunity to be consulted about a proposed Statutory Rule before it was laid with the Assembly, and have the opportunity to discuss it.

181.

The Chairperson: We should put that to the Department because I do not think we were deliberately misled. I was shocked when we were told the regulations were all positive. We need to clarify that point. Why not put up a pointer and ask the Department why we cannot look at these regulations now?

182.

The Committee Clerk: No. Paragraph 3 of Mrs Hagan's note makes it clear that advice has been received, that it would not be appropriate for the Committee to consider powers to be presented in regulations while it is trying to deal with primary legislation. Mrs Hagan says that consultation cannot take place until the relevant primary powers have been conferred, and that will be after the Bill passes through all its Assembly stages. She feels we would look more closely at this Bill if we knew what would be accomplished by doing so. This assertion is trash

183.

Mr Ford: I cannot fathom paragraph 3. It appears that, technically, the Assembly has the right to make regulations under this Bill, whether they be subject to negative or affirmative resolution. It is therefore a non sequitur that we should be deemed to have altered our attitude to the Bill, given our power to make regulations subsequent to the Bill's being passed, unless the assumption is that the Civil Service makes the regulations and we are not to be trusted with the knowledge of what is in them.

184.

The Chairperson: That is right.

185.

Mr Ford: Can the Committee Clerk tell me the differences between the Assembly's consideration of measures that are subject to affirmative and negative regulation? Are we restricted to refusing regulations subject to negative resolution but given the power to amend affirmative regulations? Am I correct on that?

186.

The Committee Clerk: It may be helpful to rehearse the procedure with Statutory Rules. All Statutory Rules, whether subject to affirmative or negative resolution, should be submitted to this Committee for pre-drafting consultation. Before a Statutory Rule becomes effective, the Committee should be asked for its view on its contents. Those views should then be taken into account in the final drafting of the Statutory Rule. The Committee should have the opportunity to influence the content of a Statutory Rule before it is laid.

187.

188.

In the case of negative resolution, a vote in the Assembly is not absolutely necessary. However, the Committee can, within 30 days, put a motion to the Assembly to have the Statutory Rule annulled. If such a motion were moved, the situation would then become similar to that of an affirmative resolution. A debate would take place and the Committee could try to convince the Assembly to have the Statutory Rule annulled. The only slight difference is that the Rule might be effective for a short period before it could become annulled.

189.

The Chairperson: That rests with the Business Committee and how much time it will allow. The Business Committee is not going to allow long periods for negative resolutions. If a negative resolution is a prayer, and if that prayer is called, it is put to the vote automatically in the debate, and there is no room for the Committee to draw up a report on it. On the other hand, under affirmative resolution, if this Committee was not happy with a regulation, it could have a full report, call witnesses and talk to them. It is easy to say that the motion could be negated but, in reality, the system does not lend itself to democracy at all. I do not understand how anybody can write this down. According to this, we are pre-empting our ideas.

190.

Mr Paisley Jnr: The Bill, as it currently stands, prohibits the collection of shellfish. That is very clear.

191.

The Chairperson: We have only been informed that it prohibits collection of shellfish at Strangford.

192.

Mr Paisley Jnr: Yes, in Strangford. As it stands, the Bill also makes us write a blank cheque to the Department with regards to the strength of the regulations, what those regulations will mean, and how they will affect people who fish or collect shellfish. We have to proceed very cautiously. Is there a way that we can suggest an amendment that would protect the right of the individual to collect. In our meeting with Mrs Hagan last week she said some interesting things, which may lend themselves to such an amendment. On page 7 of the verbatim report, she said that if the collection of shellfish was having a "detrimental effect" on the ecological balance of the foreshore the Department would have the power to regulate that. We have to lash this out with them and find out what is meant by "detrimental effect," and how it will be measured. There are people who believe that the prohibition of the collection of shellfish would have a social, economic detrimental effect, if carried through. A definition of the term "detrimental effect," needs to be given, and we need clarification of what the Bill would mean. In page 8 of last week's report, Mrs Hagan said we must be careful about how regulations are worded, in order to ensure that it is the "intensive nature" of operations that are regulated. There needs to be some interpretation or amendment that would allow us to put something into the regulations, or into this Bill, that defines the terms "intensive nature" and "detrimental effect," to make sure that the individual's rights are protected. We may also be able to address the long-standing issue surrounding people who have always collected shellfish. They should be able to proceed as they always did, as long as it is not causing a detrimental effect - providing we know what a detrimental effect is.

193.

The Chairperson: The first thing the Department will say is that the regulations are not our responsibility. This Bill should -

194.

Mr Paisley Jnr: If it is in the Bill it guides the regulations.

195.

The Chairperson: It does not prevent us from asking, in the face of the Bill, if certain things can be clarified. There is no reason why there should not be a schedule to that Bill, with definitions of terms.

196.

Mr Paisley Jnr: Maybe we can get a handle on the regulations before that, if we submit these points. We could ensure that the regulations coincide with -

197.

The Chairperson: They will really fight that, because they will say that it should not be in the face of the Bill. The Bill just consists of principles - regulations are added afterwards. At the end of the day they make the regulations to suit themselves. There is no reason why we should not test that, and see whether we can get safeguards into the Bill. However, the Department can add another 20 regulations at any time, and throw them in negatively. If they are negative, we do not have the right to call witnesses. It would be a matter of simply saying yes or no.

198.

These are very important matters and the whole presentation by the Department has been unsatisfactory. We have paragraph 3 of Mrs Hagan's minute of 3 October and the anomaly of that. The idea of "detrimental effect," is a great way to prevent people doing things the Government thinks they should not do, even though they have done them for years and they are part of their heritage. What is a "detrimental effect"? What is the "intensive nature" of an operation?

199.

Mr Pelan: The Anglo North-Irish Fish Producers Organisation, in their submission, supported the idea of sustainable harvesting of shellfish stocks. The Strangford Lough Management Committee also believe that such regulation would help create a sustainable development opportunity for the local area, in both economic and environmental terms.

200.

At least two of the submissions believe that there is a possibility that collection of shellfish can co-exist with environmental or conservation considerations. I think that Mr Hunter pointed out that in Wales there is quite an extensive hand collection of shellfish and this happily co-exists with the concepts of conservation of the stocks.

201.

The Chairperson: We would want to safeguard the rights, within reason, of commercial operations. I think that the trouble is we might be amazed at the regulations. Mrs Hagan said they have them already, and I think we should persist in that we are given some idea of what these regulations are. What we could do is ask her if they will define what the operation consists of and if they will deal with the first matter you raised. We can ask her point blank if that is contained in the regulations and that might provide us with some knowledge. Perhaps the Committee staff could apply themselves to specific questions to test the Minister on the need for regulations. I think it is quite clear that we do need to get the Department back on this issue.

202.

Mr Savage: It is too wide at the present time for us to make a decision.

203.

Mr Armstrong: Do we know if there is any risk to the shellfish on the shore. Are there fewer now?

204.

The Chairperson: There is a risk if they carry on. The mechanical -

205.

Mr Armstrong: Yes I know that, but are there more this l year than there were 5 years ago. Do you know anything like that?

206.

The Chairperson: According to the evidence there is only one firm. Is that right?

207.

Mr Pelan: It is one man with three family members and a modified potato collector.

208.

The Chairperson: I think they are saying that prevention is better and that we should move in now before it is too late and before the environment is destroyed. I think, maybe -

209.

Mr Paisley Jnr: But they have taken those rights to the foreshore, which is essentially the entire seas of the Realm. They can actually now regulate fishermen.

210.

The Chairperson: Remember, it is very dangerous when they add provisions concerning the foreshore. This is a very amazing document. The intertidal area, not included in the foreshore, will be included in the recommendations. That intertidal area is about one third of the size of the whole thing again so they will be increasing the area covered by one third. They said, in answer to a question I put, that they can control that area because it is water. When I asked them why nobody said no it was because it can be controlled under fishing laws.

211.

Mr Savage: Once the tide goes out people could make the mechanical machine follow the water.

212.

The Chairperson: Those mechanical machines have equipment on them so they can dig underwater. The water drains off and they look at what is on the bottom - like a sieve. That is not in the Bill.

213.

The Committee Clerk: They are talking about further definitions in the Bill. Mr Hagan's minute of 3 October says,

"The Department is still considering in conjunction with the Office of Legislative Counsel the need to include a definition of the inter-tidal area as detailed in the chart handed to the Committee last Friday. I will update you when the need to define or not has been established."

214.

There may be, in other words, an amendment coming from the Department to clarify whether the intertidal zone is automatically included in the area or whether it is already part of the sea. I think that is part of the argument.

215.

The Chairperson: Is that going to be in a regulation?

216.

The Committee Clerk: I think it will be in the Bill. If that correction had not been made it would have to be in the face of the Bill. We can ask the Department next week to answer all the queries raised today.

217.

The Chairperson: We want copies of the Fisheries Act (Northern Ireland) 1966 for every Committee member. It is not satisfactory to just have copies of what they are saying.

218.

Mr Dallat: I do not know anything about shellfish, but I do know that in another part of Ireland where this problem arose, divers with aqualungs had an advantage over those on the shore. They allocated sizeable quantities of scallops, although that is probably not relevant to this.

219.

The Chairperson: The Department's answer is that they can prohibit that with existing fishery regulations because that is fishing underwater.

220.

Mr Dallat: Is that altered in any way by the map that the Chairperson produced? Does that map become part of the debate?

221.

The Chairperson: If that map becomes part of the debate, and the Bill is passed it simply means that they can measure out an intertidal area. They must define the area that will be covered by the Bill. At present, it is supposed to be the foreshore, but that is not what they are covering, they are adding an intertidal area. According to what Mr Phelan said, that would have to be on the face of the Bill. We need to take some advice on that. That could be a revolutionary thing, because in other areas the foreshore does not stop at certain places. Once they get their toe in the door, the Department could replicate that for the whole country.

222.

Mr Paisley Jnr: That is a very interesting point. Mrs Hagan has already been questioned on clause 1, subsection 4 of the Bill, and she was asked what was meant by marine or coastal areas. Pages 26 and 27 of her answers say that they could use the power to regulate a fishing activity for environmental purposes - so fishing activities could be regulated. It concerns more than just a collecting. It includes collecting when out in a boat or when deep-sea diving. This will allow them to regulate all of that. It has extensive power because of the open way in which marine and coastal areas are defined.

223.

The Committee Clerk: Before we move to clause 1, subsection 4, are there any further points regarding subsections 1, 2 and 3?

224.

The Chairperson: I take it that the Committee Assistant is making a careful note of this. Is everyone happy that we move to clause 1, subsection 4?

225.

The Assistant Clerk: There was a point raised in relation to subsection 3 about Strangford Lough.

226.

Mr Bradley: Before the map, our discussion has been mainly about the Carlingford and Foyle Loughs, rather than the sea. Is it not simpler to legislate for the Lough instead of discussing high and low water marks in the Lough?

227.

The Committee Clerk: The area beyond the Lowest Astronomical Tide is already protected by existing legislation. The nature of the problem is that existing protective legislation covers the sea. Until this Bill is passed there is no protection for the foreshore, the area where the tide passes in and out. This Bill is designed to do that. You do not need to worry about the Lough because anything beyond the lowest point where the tide goes out is already covered.

228.

Mr Bradley: At Cranfield, during that Lowest Astronomical Tide, you could nearly walk across the Lough.

229.

The Chairperson: Some of us, in our boyhood, did walk across. We used to go out with spears and when you walked on a fish you could get it.

230.

Here we have this intertidal area not included in the foreshore, and that could be a vast area, if we add another third. If we got this into this Bill we could go around the country saying it is already in a Bill. The Minister made it clear that they where only talking about Strangford, but that is not in the Bill. Why should this not be limited to Strangford Lough?

231.

Mr Pelan: Last week, the Minister said that it will only apply to Strangford Lough, simply because mechanical harvesting was not taking place anywhere else in Northern Ireland. She also said, in questioning that the regulations would allow them to limit or prohibit collection by organised groups, for example. There is ambiguity in whether or not the Bill can be applied elsewhere. She did say that the authorities would take a dim view of the Department applying blanket legislation across Northern Ireland when mechanical harvesting was not happening elsewhere. They know for sure that it is happening in Strangford and that is where it is going to be applied.

232.

The Chairperson: If we have a problem in Strangford, the legislation should be specific to that area. There should not be blanket powers to bring in regulations round the whole country. That worries me.

233.

Mr Ford: There is also the conflict between the evidence of the RSPB, which says that there are problems, not only in Strangford, and the Department's advice that it is only in Strangford. We need to call in more than just the Department to take some oral evidence.

234.

Mr McHugh: Did the Minister not say that there were other possibilities that had not been looked at?

235.

Mr Pelan: Mr Hunter said that there was cockle collecting in Dundrum Bay, which was not mechanised.

236.

The Chairperson: The Committee is entitled to know the areas and places this is going to cover. When the Bill becomes law, what she says before this Committee is useless. You cannot go back and say the Department gave us a promise that the Bill was only for Strangford - you would not have a leg to stand on. A Minister's speech in the House of Commons is not definitive on any Bill. If you were testing a Bill in court you could not use what the Minister said when he was introducing it - that does not matter. The important thing is the legal interpretation of the Bill.

237.

The Committee Clerk: Is the Committee asking that the face of the Bill should be used to limit its effect, in geographical extent?

238.

The Chairperson: When members of the Committee questioned Mrs Hagan, that was what she said. The only other place mentioned was Dundrum.

239.

Mr Ford: Given that we are amending the Fisheries Act (Northern Ireland) 1966, I do not see how we can limit ourselves to one area in the face of this Bill. There is also the question as to whether the regulations should be for Strangford or beyond. It depends on whether we believe the Department or the RSPB at this stage.

240.

The Committee Clerk: Regulations can be much more easily changed. They can be updated annually.

241.

Mr Ford: I do not see how, in the face of the Bill, we can restrict ourselves to any geographical area.

242.

The Committee Clerk: I just wanted to know that. If there is no desire among the Committee to change the face of the Bill in order to restrict or extend the area involved then the question comes back to -

243.

The Chairperson: We could change the face of the Bill. There is legislation on certain environmental matters in which areas are named. We could have a Bill proceeding that does not deal with principles but with a particular problem. It would be far better and cleaner, in legislative terms, if we could have a Bill leaving the principles with the regulations that will come later.

244.

We are being asked to give blanket authority to the Government and they are not telling us what their interpretation is. Their reason is that that would pre-empt our freedom to make a decision in the Assembly.

245.

Mr Savage: Where does Strangford Lough begin and end.

246.

The Chairperson: It begins at Newtownards.

247.

Mr Savage: Does it link on up and along the coastline?

248.

The Chairperson: It goes right down to Portaferry.

249.

The Committee Clerk: The regulations would specify the area very clearly.

250.

Mr Savage: If there is a problem in Strangford can that problem be carried on past the point where the Lough ends?

251.

The Chairperson: No. The rush of the water there would ensure that there would be no chance of that happening.

252.

Mr Savage: It was mentioned - and I know that Mr Bradley said it - that another type of fish is being harvested for some other reason. It is a type of shellfish. Was that down around the Tyrella area?

253.

Mr Bradley: It was at Killowen. They said it did not come under the Bill. I was surprised that that was the case.

254.

Mr Pelan: Their reason was that it came under aquaculture and was therefore not subject to these regulations.

255.

The Committee Clerk: We need to clarify what the Committee wants. Is the Committee content that the geographical extent of any prohibition will be covered by regulations, or will it want to see something in the face of the Bill that will in some way not limit the extent of what it is trying to do.

256.

Mr Savage: Do regulations have to be drafted in terms of what can or cannot be done?

257.

The Committee Clerk: Regulations would be brought before this Committee - and at the moment the Department is saying that those regulations would specify the Bill as extending to Strangford Lough. However, regulations can be changed. The beauty of having such matters in regulations rather than in a Bill is that you can amend them in the light of experience. If such items are included in a Bill then a new Bill is required in order to make changes.

258.

The Chairperson: Would it satisfy the Committee if an assurance is given that the regulation are made for Strangford Lough?

259.

The Committee Clerk: What happens if, six months later, mechanical harvesting starts somewhere else?

260.

The Chairperson: Then we will have to bring it back.

261.

Mr Pelan: Then we will have a new regulation.

262.

The Committee Clerk: That is what they have said already.

263.

The Chairperson: That is better than giving them blanket authority. If they want to include the whole of Northern Ireland they should tell us. They told us that they did not want that. They said they were not interested in the Dundrum or Tyrella areas. Why do they not want written into the Bill that it should cover all of Northern Ireland? As far as I can see that would apply in all cases.

264.

The Committee Clerk: At the moment, the Bill, subject to regulations, can apply anywhere in Northern Ireland.

265.

The Chairperson: They do not need it.

266.

The Committee Clerk: If they did need it, the only way out of the problem would be to scrap this Bill and bring in an entirely new one.

267.

The Chairperson: The only way to safeguard a matter is to write it into a Bill. They would have to bring in another Bill to make amendments. Regulations are very useful to a Minister who wants to do something in a hurry and carry on with the least possible hiccup. You have to go through the legislation.

268.

Mr Ford: Is it not the case that, if there were suddenly a problem with mechanical harvesting in Carlingford or Dundrum, it might be entirely appropriate that regulations be made in a hurry. You are arguing the opposite.

269.

The Committee Clerk: That is precisely my understanding of what is going on.

270.

The Chairperson: How could that happen when they tell us people are not carrying out this kind of fishing?

271.

Mr Ford: They said there was cockle harvesting in Dundrum, where, if someone set off with half a dozen tractors, they could do a great deal of damage in a few days.

272.

The Committee Clerk: That was exactly my point.

273.

The Chairperson: They have never done it before. Why should they simply -

274.

Mr Ford: They did not do it with tractors in Strangford until 1998 either.

275.

The Chairperson: It seems to me that the Department is not too sure of the numbers. They gave us colossal figures, but when we studied them, we found they were not colossal figures at all. We need to hear from the environmentalists. We have had nothing before the Committee at all about any place other than Strangford.

276.

The Committee Clerk: We have already asked all of the organisations. Their names are in front of you.

277.

The Assistant Clerk: The RSPB does not limit itself to Strangford.

278.

Mr Ford: Perhaps the Committee Clerk could clarify that it is procedurally in order for us to invite people here to expand on written submissions before going into clause-by-clause consideration.

279.

The Committee Clerk: Yes. The only limiting factor would be that, if we felt we were going to take some considerable time doing that, we should have to advise the Committee of Culture, Arts and Leisure to seek an extension, for the 30 days are ticking away fairly rapidly at the moment.

280.

The Assistant Clerk: They have submitted a motion.

281.

The Committee Clerk: I am sorry. I was not aware of that.

282.

Mr Ford: It would be worth scheduling 45 minutes or an hour at an early stage and, if possible, invite the RSPB, the National Trust and the Strangford Lough Management committee at the same time, since their evidence appears to be very similar, although I do not claim it is identical.

283.

The Chairperson: I shall get them to refer to Tyrella and Dundrum.

284.

Mr Ford: The Committee Clerk is about to tell me that you cannot do that.

285.

The Committee Clerk: Apparently it is not deemed good practice to have three organisations sitting at the bottom of the table simultaneously. We could simply bring them in one after another.

286.

Mr Ford: We might well have a situation where the National Trust, if called after the RSPB, might say something on which the former organisation might wish to comment.

287.

The Committee Clerk: You would have them all in the room at the same time.

288.

Mr McHugh: We shall be giving Hansard some difficulties.

289.

The Assistant Clerk: The point is that you would have to take them one at a time for evidence, but there is no reason why you could not ask people to come back to the table.

290.

The Chairperson: I do not think we should.

291.

The Committee Clerk: Perhaps we could clarify if the Committee is instructing us to arrange this for next week. Is that the Committee's mind?

292.

Mr Ford: Or as early as possible.

293.

The Chairperson: What had we scheduled for next week?

294.

The Assistant Clerk: We were going to have the Department back.

295.

The Committee Clerk: There would be no point in having the Department back before speaking to the environmentalists. The Committee must be absolutely clear about the issues.

296.

The Assistant Clerk: Are we only talking about those three organisations or are we talking about the two fishery organisations also?

297.

The Committee Clerk: We were looking at subsection 4, Mr Chairperson. There are issues to be raised with the Department in clause 1, subsection 4.

298.

Mr Paisley Jnr: That is the marine issue.

299.

The Chairperson: It provides the power to make regulations in two areas.

300.

Mr Paisley Jnr: It seems to be wholly in relation to the definition of coastal and marine areas. I took a note of what the Minister said about a portion of the Realm, which, essentially, could mean anything.

301.

The Chairperson: What is the difference between a marine -

302.

The Committee Clerk: The advice given -

303.

Mr Paisley Jnr: A portion of the Realm that lies between high tide and low tide.

304.

The Committee Clerk: The answer given was that a marine environment extends out into the sea, and that includes normal fishing grounds.

305.

Mr Paisley Jnr: What about the North Sea shore?

306.

The Committee Clerk: Mr Pelan, what points arise from the issues surrounding subsection 4, which includes the conservation or enhancement of the natural beauty of marine or coastal areas?

307.

Mr Pelan: That is one of the points that I raised - what is meant by those terms. I assume that it means that the current regulations already cover the sea and the Bill is intended to extend the legislation to cover the foreshore. As regards the definitions for marine and coastal areas, perhaps they mean the foreshore with 'marine' meaning the sea. This is a question we could put for additional clarification.

308.

The Chairperson: This goes into the realms of archaeology and history. That is a peculiar thing to see in a Bill such as this.

309.

Mr Pelan: It seems to be very broad.

310.

The Chairperson: It is very broad.

311.

The Committee Clerk: Am I right in assuming that they are saying that the notion of regulating to protect an area extending into the open sea is the first time that protection can be applied to an marine area, rather than to a coastal area, for conservation purposes?

312.

Mr Pelan: That is exactly right; it is for environmental purposes.

313.

The Committee Clerk: So, you would usually regulate normal sea fishing areas for reasons such as protecting the fishing stock, or whatever. This is additional in that it is allowing the Department to regulate in order to protect the normal fishing area for reasons related to the environment.

314.

Mr Pelan: Yes, but what are those reasons? They do not state them there. You have just mentioned the conservation of stocks; that would be an environmental reason.

315.

The Chairperson: I do not know why they should take in features of archaeological or historic interest.

316.

The Committee Clerk: I think that it is because it is a marine or coastal environment here. Archaeology would only apply to the coastal areas.

317.

The Chairperson: Why should it?

318.

The Committee Clerk: It is just because it applies to coastal areas as well.

319.

The Chairperson: I know that, but why do they want to take that in? This is supposed to be dealing with shellfish. Under this Bill, these people would have the power to stop archaeological investigations or those on matters of historic interest. I do not think that that should be in a Bill at all.

320.

The Assistant Clerk: It is so they could stop the fishing for reasons of archaeological interest.

321.

Mr Pelan: Flora has been included, and we have not discussed that yet. A number of birds feed on eelgrass in Strangford Lough. Also, one of the beaches could be affected by someone dredging, or by the shellfish. Also, one of the submissions raises the issue of seaweed. There should also be a prohibition on seaweed collection on environmental grounds. That might be covered by that sea fishing legislation. If you are including flora you are talking about any plant life. That was not touched on last week.

322.

The Chairperson: That is right. You are back to the power to make regulations. On the face of this Bill we could put in "positive".

323.

The Committee Clerk: "Affirmative"? No, not on this Bill. You would have to ask for an amendment to the original Fisheries Act (Northern Ireland) 1966. These would be changes to the Act.

324.

The Chairperson: We could recommend that there would be an amendment.

325.

The Committee Clerk: The Committee certainly could include the words that it recommends that the Fisheries Act (Northern Ireland) 1966 be amended to include these regulations as affirmative.

326.

The Chairperson: Not that you'll get it. I persuaded the Assembly.

327.

The Committee Clerk: Have Members any views?

328.

The Chairperson: It seems that this Bill is getting lighter and lighter as it goes on. There are a lot of things in their mind that they are going to do and they thought that we were stupid enough to think that it was just about a few shellfish in buckets. But now as we read into this it gets stronger and stronger and the net goes away out into the darkness of the archaeological aegis, and also we come into the area of plant life.

329.

Mr Pelan: We should try to find out what they actually mean by that. They have also consulted the RSPB and the National Trust, so maybe they also have an idea to consider seaweed collection or to prohibit seaweed collection as well.

330.

The Chairperson: I think, Mr Pelan, you need to go back to them and ask for more information.

331.

The Committee Clerk: I will write a letter.

332.

The Chairperson: We need to get full clarification on that. I will write it.

333.

Mr Savage: In clause 5, the FCB has the power to make bye-laws.

334.

The Chairperson: Let us finish with subsection (4). We are happy enough about new subsection (2A) (a) and we will get an explanation.

335.

Mr Savage: Does the FCB need permission from anyone to make bye-laws? Do they need permission from this Committee? Do they have control over that themselves?

336.

The Chairperson: Are you referring to the regulations?

337.

Mr Savage: Yes.

338.

The Chairperson: The regulations lie with the Department and with the Minister. She does not need to consult anybody. In fact, they are not consulting us on the regulations.

339.

Mr Savage: That is how I see it.

340.

"(4) Where-

(a) a person who commits an offence under subsection (3); and

(b) a vehicle or equipment is used in the commission of the offence, then, in addition to that person, any person who caused or permitted the commission of the offence is guilty of an offence".

I think that would include a spade as equipment if used in the commission of the offence. That idea of a bucket and spade being excluded is not correct. They constitute equipment.

341.

The Assistant Clerk: There is a description of equipment at clause 1 (3). They have to specify what equipment means in the regulations.

342.

Mr Pelan: What they were including was "any vehicle", instead of "fishing vessel." As this activity is on the shore, you are not going to be on a boat; you are going to be using a tractor or a car. They inserted "any vehicle or any vehicle of a specified description" after "fishing vessel" in the Act. Primarily this is legislation for fishing at sea but now there is activity on the shore, so they include vehicles.

343.

The Committee Clerk: Just before we move to clause 2, the Strangford Lough Management Committee have suggested that an amendment should be made to section 185 (a) of the Fisheries Act (Northern Ireland) 1966 to say that legislation should comply with current directives. In our letter we should ask whether it would be an appropriate amendment to make.

344.

The Chairperson: It does not matter now. It used to be that we made statements in the House of Commons and the Minister said it applies to us. But since 2 October, those laws are [interruption]

345.

The Committee Clerk: Is that because of the Human Rights Act?

346.

The Chairperson: Yes, it is because of it, but it would be a good idea to draw their attention to that to clarify it.

347.

Mr Pelan: Does the amendment comply with the requirements under the EEC Habitats Directive?

348.

The Committee Clerk: We could use that as the example.

349.

Mr Paisley Jnr: With regard to the power in clause 2, I know the RSPB have lobbied for a slight amendment to clause 2(1). The new subsection (1A) says "with respect to any vehicle or equipment which is or has been employed in fishing." They would like that extended to mean any vehicle or equipment which is or has been or is suspected of being employed in fishing. This would give meaning to the enforcement regulations. If there is to be effective enforcement, then suspicion should apply.

350.

The Chairperson: Who suggested that?

351.

Mr Paisley Jnr: That was an RSPB suggestion, and I think it's a reasonable one. It follows that if we accepted it there would be a number of additional changes. Subsection (1A) (b) refers to "persons in or suspected of being on the vehicle or equipment". This is brought through in a couple of them.

352.

The Chairperson: If you are all happy enough with that, we shall move on to clause 2 subsection (2) which deals with section 180, "procedure for disposal of boat or fishing engines seized in certain cases".

353.

The Committee Clerk: We are changing a series of definitions in the original Act. Does anyone want to raise a point with regard to that?

354.

Mr Pelan: I did not see any. It seems that instead of "for any fishing engine" they put "fishing engine, vehicle or equipment" simply to cover any equipment that would be used in the collection of shell fish; a tractor or car for example.

355.

Mr Ford: Or a bucket and spade!

356.

Mr Savage: A substitute can cover a lot of things, then.

357.

The Chairperson: That is really just to bring into line what probably would be used.

358.

Mr Paisley Jnr: It seems quite ridiculous that you could seize a boat but not a tractor if that vehicle has been used in committing an offence.

359.

The Committee Clerk: So there are no points to be raised, then. Let us move on to subsection 3. Mr Pelan, will you please remind us what that was about.

360.

Mr Pelan: This simply covers the situation where someone has been collecting shellfish and has them in their possession; this provides the right to seize shellfish whether in or on the vehicle. If it is suspected that the shellfish have been collected using mechanised harvesting, this subsection provides that it can be seized and disposed of as seen fit by the officer.

361.

The Chairperson: Those are usual regulations under law anyway, are they not?

362.

Mr Pelan: Yes, they are.

363.

The Committee Clerk: There is nothing contentious in that, then.

364.

Mr Pelan: No. It is really the clarity of clause 1 which is at issue.

365.

The Chairperson: In subsection (5) they have given a definition of sea fish as those found "in or on the foreshore".

366.

The Committee Clerk: That is why it is so important to include the definition of foreshore.

367.

Mr Paisley Jnr: What about "suspected of being in or on the foreshore"? The fish could well be removed to another location, and evidence subsequently received that this was the case.

368.

Mr Ford: In my view, it comes down to the definition of the species.

369.

The Committee Clerk: The points you have made about "suspected" foreshore fish automatically apply by law in any case.

370.

Mr Paisley Jnr: Yes.

371.

The Committee Clerk: We have now dealt with all the provisions. We will arrange to meet with the relevant organisations next Friday.

372.

Mr Paisley Jnr: I would like to make a point about disturbing spawning beds. I will write to the Culture Arts and Leisure Department with my query.

373.

The Committee Clerk: We shall write a letter now requesting clarification of these points for our meeting next week. That will enable us to clear up the material covered today. At that point, the Chairperson or the Committee will wish to either vote for or against the various amendments that are beginning to arise out of the discussions.

374.

The Chairperson: This public session is concluded.

Mr J Kerr ) Strangford Lough
Ms C Nolan ) Management Committee

375.

The Deputy Chairperson: I welcome Mr Kerr, Chairman of the Strangford Lough Management Committee (SLMC), and Ms Caroline Nolan. I understand that you want to make a statement?

376.

Mr Kerr: Thank you for affording us the opportunity to clarify and expand on some of the points we made in our written submission to your Committee. We are speaking on behalf of the SLMC and you may know from our written submission that our group represents all people with an interest in Strangford Lough. Its purpose is to advise Government on the management of the lough.

377.

Let me say right at the beginning that we fully support the legislation being brought in. It will bring us into line with what is happening in the rest of the United Kingdom and indeed, as a Committee, we have been lobbying for that for a number of years. We want to put that on the record.

378.

One of the points you asked us to deal with is the compatibility of collection and conservation in Strangford Lough. Before answering that we would like to emphasis the importance of Strangford Lough.

379.

It is regarded by the local district councils, and rightly so in our judgement, as the jewel in the crown of their tourism resources. For those of you who know the place it is stunningly beautiful and it has been designated as an area of outstanding natural beauty. It is widely used for all forms of recreation. The population within the catchment area is 60,000 and another 250,000 are within 30 minutes drive of the area. It is an environmental resource of international importance and arguably, in our judgement, it is the most important wildlife site in Northern Ireland. Not only does it have a number of national designations to confirm this it also has a several international designations. For example, it is a Ramsar site and it has been designated by the European Community as a special protection area, because of its bird interest, and it is being considered for designation as a Special Conservation Area.

380.

The fact that it is so important means that we have got to be very careful and ensure that any new activities do not damage this very valuable resource. Obviously, collecting shellfish for the pot has been going on for generations without any adverse effect or any great problem so we have no difficulty with that. However, commercial exploitation of fish stocks in the intertidal area is a different matter.

381.

The use of mechanical equipment has given man the potential to cause considerable damage and make the lough much less valuable for wildlife. To illustrate that, I will give you the facts on two bird species. We have approximately 7,000 oystercatchers on the lough, and cockles form a very important part of their diet. Research has shown that these birds can consume up to 500 cockles of fishable size per day - a lot of cockles per bird but that is what the research shows. Obviously without unrestricted commercial harvesting of cockles the long-term food supply for these birds would be under threat. In our judgement there would be an inevitable effect on the oystercatcher population. It would fall significantly.

382.

The other example is the light-bellied brent goose. Strangford Lough carries, something like, 60% to 75% of the European population of this species in winter time. They come to Strangford to feed on the eel-grass which you tend to get in the flats at the northern end of the lough. Many of these flats cover oyster beds so the mechanical harvesting of cockles under the Zostera SLMC, or eelgrass, beds would have quite a devastating effect. Experiments in the Solway have shown that the density cover of eelgrass was reduced from 75% down to 5%.

383.

Therefore it had a fantastic effect on the eelgrass, which is the staple food of the brent goose. The inevitable outcome would be a collapse in the brent goose population. However, the Government is obliged under European Community legislation to protect these birds. In our view, the unrestricted exploitation of cockles, whether by mechanical means or hand collection, will have a major effect on the ecology of the lough. We are not opposed to some commercial exploitation, but it must be carefully monitored and regulated.

384.

The second question referred to the environmental threat from hand picking. The term "hand picking" is a misnomer. Cockles are usually found in the mud or sand down to a depth of three centimetres, and people use metal hand rakes, as found in the garden, to harvest them. If a large number of people used these hand rakes it would almost have the same effect as mechanical harvesting. I emphasise that we are not opposed to hand picking, but it must be regulated. There is evidence from other areas that commercial collection using hand rakes is sustainable if it is carefully managed and there is good co-operation.

385.

The third question was in relation to the threat posed to areas other than Strangford Lough. Our remit only extends to Strangford Lough. While we anticipate that other areas are under threat to a greater or lesser extent, we are not in a position to make a definitive statement about them, because the effect of mechanical harvesting depends upon the scale, when the harvest occurs and the area being harvested.

386.

The final question concerned the potential effect on the fishing fleet. SLMC welcomes powers for fishery regulators to enable them to regulate for environmental purposes, and for the protection and management of fisheries. This integrated approach is essential for the conservation of marine resources and human activity - both now and in the future. The amendment will allow existing bodies to regulate fishing in sea areas, conserve the marine environment and provide new powers to regulate fishing in the intertidal area. Such powers are wholly appropriate, but should only be used by the Department following further consultation of the regulatory orders.

387.

Finally, SLMC is convinced that this amendment to the legislation will address the Government's requirement to protect one of Northern Ireland's greatest environmental assets. We are assured that it will not compromise the traditional right of non-commercial collection of shellfish for the pot. The Committee also welcomes this as a move towards a more integrated approach to the Government, because fisheries legislation must take account of the need to protect the environment upon which fisheries are based.

388.

The Deputy Chairperson: The intertidal area, which your opening statement covered, is an area of concern for the Committee. Can you elaborate on that point?

389.

Mr Kerr: Strangford Lough has an area of 150 square kilometres, and 50 of those are intertidal; they are exposed at low-tide. Most of that area is at the northern end of the lough.

390.

Mr Ford: You mentioned multiple hand raking, for want of a better phrase and suggested that, even without the use of machines, it was possible that personal harvesting might not sustain the bird population. However, you did say that there were examples where it could be sustainable with careful management of the shellfish harvesting. Where did those examples refer to?

391.

Ms Nolan: Although we do not have much information, it appears that there is a carefully managed and fully regulated regime that appears to be sustainable in the Burry inlet. You will appreciate that I do not know the area, but in a computerised model there were something like 150 people involved and, even then, the oystercatchers are showing some signs of stress.

392.

Under a managed regime there are a number of options: the activity can be extended; restrictions can be imposed as to the time of year that people are hand raking; and the area can be given a rest for a year, in a similar way to that used by farmers who wish to control the nutrients in a field. On the shore, the system is similar. It is a question of management and regulation. We would look to the Burry inlet as a good example.

393.

Mr Ford: Is that done on the basis of regulations that can specify times et cetera?

394.

Ms Nolan: Yes. In England and Wales, it is mostly controlled by sea fisheries committees. In Scotland, by-law were introduced. In Northern Ireland, it is controlled by regulatory orders.

395.

Mr Paisley Jnr: It is good to hear your views on this Bill. Trying to strike a balance between collection and conservation is obviously a difficult task, and yet that is exactly what this Bill attempts to do. It is therefore essential that we are absolutely clear as to the powers of the Bill.

396.

You mentioned the threat to conservation by harvesting. An expert from the Department indicated to us that tons of shellfish would need to be removed before the conservation of the area would be damaged. In your opinion, what weight or number of shellfish would need to be removed before the environment would be damaged or threatened? How far can people go with hand picking shellfish for traditional reasons before you would enforce the legislation arising from this Bill to prevent them doing that?

397.

Mr Kerr: We are not at all worried about local people around the lough taking cockles for the pot. That has not been a problem; it has been going on for centuries without any great effect. But if there is large scale commercial exploitation, with people taking a high proportion of the cockles, there would be a considerable effect.

398.

I know the people who proposed to mechanically harvest something like 2000 tons of cockles per year. During the harvest other cockles tend to become damaged, and so there is quite an effect. We represent all the interests around the lough, and so we are not opposed to people using the resource for their benefit, but we want cockles to be sustainable for the sake of the wider environment.

399.

It would be very difficult, Mr Paisley, to give you exact figures since those are not known, but we want careful monitoring of the harvest to form part of the requirements of any proposed regulations to help regulate how far that harvest would go.

400.

Mr Paisley Jnr: Who should do the monitoring? Should it be the Department, an independent body, or yourselves? Who would be expert to do that monitoring so that people who collect freely could rely on impartial expert advice and those who are interested in conservation would also accept that advice?

401.

Mr Kerr: Speaking off the top of my head, I think it should be the Department of Agriculture and Rural Development, and not the Environment and Heritage Service which has a significant role and will be monitoring for conservation reasons.

402.

The Department of Agriculture and Rural Development has a monitoring role not only to prevent exploitation of the fish but for conservation reasons. It is not in their interests, nor those of fishermen to have the cockle population fall. The cockle population has got to be kept at sustainable levels. It has fallen in other places, such as the Thames and the Wash, and there was a devastating effect on oystercatches.

403.

The Deputy Chairperson: Will you tell us about the process of hand picking? Is it done with a spade or a shovel? We need to be clear about this.

404.

Mr Kerr: It is like a small steel rake, like the type you would use to rake the garden when you are sowing grass seed - you would usually have a small rake to finish off such work. We are happy about that type of equipment. The cockles, as I said earlier, usually go down to about 3 centimetres in the mud. You would only be raking the top surface with a steel rake.

405.

Mr Armstrong: It is the very metal thing which I worry about. The raking can destroy your grass. Corrosion can affect it.

406.

Mr Kerr: If there is a lot of raking, mechanically, or by hand, it will destroy the eelgrass beds. It can cause a reduction from 75% to 5%.

407.

Mr Armstrong: Is there an appropriate harvest time for cockles?

408.

Mr Kerr: The appropriate time to harvest cockles is just before August, because this is when you get the spat being formed.

409.

Mr Armstrong: Could we have a restriction on certain times of the year, when they could only be lifted by people?

410.

Ms Nolan: These are the things we certainly want to look at. The way fisheries are managed is not only going to affect the environment, there is also a balance to attain, between commercial gain and the environment. You might find that, in order to get maximum commercial gain, you might look to harvesting in October. But because it is Strangford Lough, and because it might affect the birds or the eelgrass at particular times of the year, harvest time needs to be restricted to a narrower band. It is a matter of drawing a balance.

411.

There is also an advantage with handpicking, in that collection is more precise. Also, it is easier to focus on the size of the cockle that is being taken. What we are looking for is a fishery, based on large, high quality cockles. One of the disadvantages with mechanical harvesting is that machines collect a range of sizes and also damage other cockles, which are not even being used. There can be a lot of shell damage. Handpicking allows a better selection, and is not as destructive to the cockles not being collected. The collection is then based on large size, high quality, which matches the identity of Strangford Lough as a high quality food producer.

412.

Mr Armstrong: In other words, you take off what is ready to be harvested at a certain time of the year?

413.

Ms Nolan: Yes, at a time of year and in certain areas.

414.

Mr McHugh: Will the hand-raking increase as the mechanised methods have stopped, and will people move in instead. Will hand-picking have a negative effect as far as birds are concerned?

415.

Mr Kerr: It depends on the rate of activity. The rate of activity depends on the value of the cockles. Two years ago, they were quite valuable, so there was a lot of interest in cockle harvesting. But the value of the cockle has dropped considerably, so there is not as much interest anymore. That is not to say that it could not rise again.

416.

Mr Molloy: Between mechanical harvesting and the number of people required to do the same sort of damage, is there some way of restricting the output or the amount of shellfish each person takes out? Is there any means of actually restricting the amount of cockles that would be taken out?

417.

Mr Kerr: A small harvester can take something like eight tonnes per day. It would take a lot of people to gather that amount.

418.

So, we are not too concerned about hand-collection, as long as it is regulated and as long as people stay away from Zostera SLMC beds. You can do better there with hand raking than you can with mechanical harvesting.

419.

The Deputy Chairperson: Once you bring the harvesters in there will be a different impact altogether. Do you see any need for amendments to cover for this?

420.

Mr Kerr: We are perfectly happy with the Bill as it currently stands. There are some changes that we would like to see brought in later, but as it stands at the moment we are fairly happy.

421.

Mr Paisley Jnr: Are you aware of the RSPB's suggestions for amendments?

422.

Mr Kerr: I think we have seen them. They wanted to tighten up the regulations, but I have not had time to see if that was feasible. They have obviously given the issue considerable thought. Their interest was to tighten it up considerably, and clearly we would support that.

423.

Mr Ford: In her letter, Ms Nolan referred to the harvesting of seaweed, and to the suggestion that regulation of commercial harvesting is now essential. Is there evidence of a current problem or do you anticipate this as a problem in the near future?

424.

Ms Nolan: It is more of a near-future problem. It is not on the same scale as the potential problem from cockle harvesting, but we have one operator currently looking at the harvesting of dulse seaweed. Queen's University is also carrying out some research with regard to the potential for that. At present, however, the techniques are such that harvesting dulse is not economically viable. However, if it did become economically viable then it is likely that people would want to do that.

425.

Mr Ford: Would that affect the dulse itself, would it have a knock-on effect on other parts of the ecosystem?

426.

Ms Nolan: Mainly it would be the knock-on effect through displacement, although that is a bit of an unknown quantity. This would be a completely new activity for Strangford Lough, unlike cockle collection where there has been harvesting for the pot. It is the growing of dulse, rather than collecting wild stock of it, which causes legal problems. It is a bit like aquaculture. We suggest it should be licensed in the same way as aquaculture. We wanted to draw this to the Committee's attention as something to be looked at in the future, rather than suggesting an amendment to the Bill at this time.

427.

Mr Molloy: There is a link between seaweed and organic gardening and marketing and, as you say, there may be a problem in the long term. Is this specific to that particular area?

428.

Ms Nolan: Probably not. It is outside our remit to comment on other areas, but Strangford Lough is very rich. As such it tends to be the first place people think about for these activities, although I am sure there are other areas in Northern Ireland.

429.

The Deputy Chairperson: Mr Kerr and Ms Nolan, thank you for your attendance. We have other people to meet today, but we are concerned about this process and we want to do what is best for the industry.

Mr David Thompson - National Trust

430.

The Deputy Chairperson: You are very welcome, Mr Thompson. I understand that you are a property manager from Strangford Lough Wildlife Scheme (SLWS) and you have an interest in the National Trust. I know you would like to make a submission to the Committee. The floor is yours.

431.

Mr Thompson: I convey the National Trust's gratitude to the Committee for the opportunity to give evidence in support of the Fisheries (Amendment) Bill, and expand on our first submission.

432.

Over the last decade or more the National Trust has been actively involved in raising the matter of shellfish harvesting in the intertidal area of Strangford Lough as an environmental issue. The trust's efforts have included informing the general community about this issue.

433.

The National Trust has undertaken dialogue with Government Ministers and officials over the years and it has applied for a licence to establish a shellfish fishery on Strangford Lough under its own name. Over the years, the Trust has also attempted to control some aspects of shellfish harvesting on its land through its own bye-laws. Trying to exercise the National Trust's bye-laws on its own land to control the shellfish harvesting resulted in litigation and an action was heard in the High Court in November 1997.

434.

The National Trust is a major landowner and lessee of intertidal shores on Strangford Lough for the primary purpose of preserving the lough's natural beauty and historical and biological interests. Public enjoyment of the trust's lands is of high importance where that is sustainable and compatible with the primary interests. For your information I have brought one of our leaflets containing a map that gives a breakdown of the ownership and lands leased by the National Trust.

435.

The Committee asked for further evidence against four specific questions and I will try to address those, taking the compatibility of collection and conservation first. The biological importance of the lough is acknowledged through a range of statutory designations which form a framework for the protection and conservation of the lough's wildlife and natural habitats.

436.

European-driven directives have established the lough as a candidate for Special Area Conservation (SAC) and as a Special Protection Area (SPA). These directives make the Government responsible for the production of the management scheme that recognises the important features of the SAC and SPA and gives clear guidance as to how features are to be maintained in a "favourable condition". The important features identified and recognised include tidal and sub-tidal, rock, boulder, gravel, sand and mud communities, horse mussel beds, the eelgrass beds and the salt marsh.

437.

The compatibility of collection and conservation with regard to taking wild stocks depends on a number of factors - the species involved; the quantity being harvested; the methods used and the resulting damage to the associated habitat and species. The issue for the National Trust and others is exploitation for commercial purposes where the scale, frequency and methods of harvesting are such that the conservation features of the lough may be adversely affected. The recent experience with mechanical harvesting of cockles highlighted how the potential for exploitation can quickly develop and give rise to great concern. This experience clearly exposed how the statutory designations and powers of legislation have been inadequate.

438.

I would also like to refer to studies from Strangford Lough and elsewhere indicating the environmental impacts of mechanical harvesting for cockles. I also make reference to a review of the effects of fishing in the United Kingdom and European marine sites which was produced under the UK Marine SAC's project and the homespun 'The Effects of Cockle Harvesting in Strangford Lough' by the then Department of Agriculture in collaboration with Queen's University.

439.

The environmental impacts that these studies have indicated include extensive, systematic depletion of cockle stocks; declines in associated invertebrates in the sediments where the cockles are living; destruction of eelgrass; the forcing of birds to exploit alternative and less profitable food resources; and disturbances to birds. The mechanical activity would also accelerate, in some instances, the erosion of sediments, which degrades the habitat.

440.

In light of this experience, the National Trust takes the view that mechanical methods of harvesting are highly likely to be incompatible with conservation interests and are unacceptable. Effective regulatory orders are required to prevent mechanical methods of shellfish harvesting.

441.

The Committee also raised the issue of what threat there would be to the environment by hand picking. In the National Trust's view, the taking of small quantities of shellfish by hand - and I am assuming that rakes and forks can be used for cockles - for personal and home use is generally acceptable.

442.

If the current level of hand picking for domestic use were to increase substantially or become concentrated in sensitive nature conservation areas, then this could pose a threat to the environment and would require the Department to consider regulation. There remains an issue where hand-picking methods are still being used by commercial gatherers of winkles - or "willicks" as they are known locally - the Latin being littorina littorea. The National Trust has in the past, tried to take steps to stop and control this activity when it perceived that the quantity being removed, and the resulting damage to the environment and habitats, are not compatible with the wise use of the natural resources in Strangford Lough. The trust is concerned that amendments to the legislation should enable regulation for this kind of activity where there is a likelihood or threat of damage to the environment.

443.

The trust would be the first to admit that it is not an expert in the scientific analysis of the environmental impact of shellfish gathering. We have not got the resources. The trust took the lead in trying to control the gathering of whelks and applied the precautionary principle. From now on, the trust will expect the Government to look at this issue. The Government have the resources to examine the area of shellfish gathering in detail.

444.

As a footnote, you might be interested to note that, over the years, the trust has frequently been contacted by, and at times has been under pressure from, the general public and local councillors who have asked what the trust is doing. They have complained that there is not enough control on our lands and have asked us to stop uncontrolled and unregulated shellfish gathering. The trust has taken action over the years to try, in its own way, to control and regulate the activities.

445.

The trust believes that a pragmatic approach allowing limited commercial exploitation of wild shellfish stocks might be possible, but only if it can be shown that such activities were environmentally sustainable and compatible with nature conservation interests. My colleagues made reference earlier to a good example from the Burry inlet in Wales where an industry, based solely on hand raking methods and regulated in many other ways, provides for sustainable fishing which is compatible with its conservation interests. However, the trust would advise a strong cautionary note: a pragmatic approach such as this can only be based on very careful research and monitoring, underpinned by effective controls.

446.

The third point is threats to areas other than Strangford Lough. The National Trust is aware of wild shellfish stocks which are being exploited, or have the potential for being exploited, in other areas such as Carlingford Lough and Dundrum Bay. The threat, actual or potential, to these other protected sites raises the same issues as those at Strangford Lough. Therefore, the trust is supporting amendments to the legislation which will allow for regulations to apply to these other sites.

447.

Finally, on issues regarding the potential effect on the fishing fleet, the National Trust would support amendments that would allow new regulatory powers, if needed, enabling management of sub-tidal fisheries for nature conservation purposes.

448.

The Deputy Chairperson: Which rules and regulations would you like to see tightened up?

449.

Mr Thompson: Any kind of shellfish gathering, mechanical or by hand - and by inference hand tools can be used in the hand-gathering methods - that is not compatible with the nature conservation interests of the site, should come under regulation and control. The trust would argue strongly that the amendments to the legislation should make full provision for any kind of shellfish activity not compatible with the nature conservation interests of the site.

450.

Mr Paisley Jnr: I want to declare an interest in this matter because I am a member of the National Trust. The devil is going to be in the detail, and it is going to be a regulatory issue. We have not seen the regulations yet, so we are taking this Bill forward with one eye shut.

451.

Is the Bill, as currently worded, adequate to protect the environment and allay the concerns you have put to us today?

452.

Mr Thompson: The Bill, as it shapes up so far, appears to be adequate. The National Trust has no great problems with the way that the amendments are being worked through.

453.

Mr Paisley Jnr: Should the regulations be prohibitive? Should they prevent collection before a problem arises, or should they provide for the monitoring of collection, and then for the stepping-in if problems then arise?

454.

Mr Thompson: The trust has always maintained - and I have gone on record describing it this way - that mum, dad and the kids at Kircubbin and Greyabbey getting whelks for their Sunday tea is not a problem. It has probably never been a problem. The problem is when there is larger scale activity - at the commercial or semi-commercial level - and that is when we would like to see more prohibition of activity.

455.

It is very important that the right kind of research and monitoring is undertaken so that we have as clear an understanding as possible about when levels of activity become unacceptable. The Trust is not expert in such matters and we look to the Government to instigate the appropriate monitoring of sites - and the human activity interacting with sites - and from that information to determine the management of those activities.

456.

Mr Ford: You mentioned, as did the Management Committee, the issue of the Burry inlet and the different effects there. Does the trust have any experience, from its involvement in England and Wales, of any other sites that are in difficulties, and have there been any particular solutions to those problems?

457.

Mr Thompson: I cannot cite anything in particular. For some years we have had our eye on the harvesting of cockles and other shellfish in England, Wales and Scotland to see what the issues were and how local authorities were trying to deal with those issues. I have no specific information on which to draw in trying to answer your question. We are aware of many instances throughout the UK in which the authorities have dealt with the issue of shellfish harvesting.

458.

The Deputy Chairperson: Is shellfish harvesting a great boost to the tourism industry in the Strangford area?

459.

Mr Thompson: I think the fact that people can get the most wonderful locally grown oysters in the hotels around the shores of Strangford Lough must be a great asset. The waters are brilliant for the growing of wild and commercial shellfish. The quality of the habitat that supports shellfish on the lough has to be important in terms of being an attraction for the visitor.

460.

The quality of the shellfish indicates the general quality of the habitat. If the shellfish are doing well then, by and large, the habitat is doing well.

461.

The Deputy Chairperson: So it would be important to protect that habitat?

462.

Mr Thompson: Yes.

463.

Mr Armstrong: Do you see any need for policing the area in case too many shellfish or cockles are lifted?

464.

Mr Thompson: There is a continuing need to monitoring activities on Strangford Lough. It is not just about the activity of shellfish gathering, it is about all human activities that interact with the lough. They all need appropriate monitoring. If needs be, the managers, or those responsible for the lough, can then be informed and can take appropriate action.

465.

Mr Armstrong: Does there have to be some provision made in the Bill so that the area could be monitored and, if needs be, a restriction placed on it?

466.

Mr Thompson: It is one thing to make the regulations but they have to be enforced. There needs to be sufficient resources to make the amendments to the Bill effective.

467.

Mr Kane: Is there a high level of commercial fishing? Can you state how many groups would be involved?

468.

Mr Thompson: It is difficult to state how many groups are involved because numbers fluctuate. As Christmas nears there are a lot more people, men in particular, working the shores of Strangford Lough for shellfish. It is difficult to say. This goes back to the previous question; there is a need for sufficient resources to monitor levels of activity on the lough. We are not talking about a handful of people. As a National Trust warden for the lough I estimate there are hundreds of people involved in gathering the wild shellfish stocks and that could escalate without proper regulations.

469.

The Deputy Chairperson: Do you see a threat to areas other than Strangford Lough?

470.

Mr Thompson: Yes. There are good stocks of wild shellfish around the shores of Northern Ireland - Carlingford Lough and Dundrum Bay for example - so the same principles apply. Where there is a local and commercial interest to exploit the wild stocks in these protected sites, niche conservation sites comparable to Strangford Lough, the same issues prevail and the same need for regulation of the activities will be necessary.

471.

Mr McHugh: First, I commend the publication of your guide to Strangford Lough. It certainly seems to be an active place and worth looking after. In your studies, what effects have you found in relation to the exploitation of birds and other flora and fauna? Will there also be any other effects when this exploitation ceases? I don't know if it is related to the issue, but there is a tremendous problem with zebra mussels in Fermanagh, but I think that may be connected with fresh water.

472.

Mr Thompson: That is not an issue for Strangford. I have referred to scientific literature which has looked at the broad issue of shellfishing in the UK. We have also taken the advice of people working on National Trust. A number of eminent marine experts associated with Strangford Lough and Northern Ireland support the precautionary principle that there is a potential threat of commercial gathering on the environment. Mr Kerr referred to the oystercatcher issue, which has been studied extensively on some English estuaries. That has demonstrated catastrophic falls in number of oystercatcher populations where the cockle stocks have been plundered by commercial gathering.

473.

Mr Molloy: To return to an earlier question we had on oyster quotas as opposed to curtailment, is this a mechanism that could be used? With regard to the geese and the damage to the eelgrass, do you think this should be considered?

474.

Mr Thompson: We could take a serious, collective look at the idea of quotas; there are probably less sensitive areas on the lough. With the right timing, and with restrictions on quotas and in the number of people involved, we could build a shell-fishery that would let people exploit the natural resource, but in a sustainable way.

475.

You asked about geese and Zostera marina. We were deeply concerned when the mechanical harvester first arrived on the lough. It was easy to see where the harvester had run over sediment while looking for cockles where the Zostera marina was on the surface, and, of course it was trashed - there was clear evidence of this. Hand-raking for cockles where there is Zostera marina would have the same effect. You would have to be very careful about the amount of harvesting that was allowed using hand-raking methods where there is Zostera marina: you would not allow the two in the same situation.

476.

The Deputy Chairperson: You seem to have a good working relationship with all the other bodies in the Strangford area. Are there any other amendments you would like to see to this Bill, or you happy enough with it as it stands?

477.

Mr Thompson: The trust is happy with it as it stands.

478.

The Deputy Chairperson: May I, on behalf of the Committee, thank you very much for your contribution this morning.

Mr C Mellon ) Royal Society for the
Mr N Johnston ) Protection of Birds (RSPB)

Martin Wilson - Committee Clerk
Paul Moore - Assistant Clerk

479.

The Deputy Chairperson: Mr Mellon and Mr Johnston from the Royal Society for the Protection of Birds (RSPB), you are very welcome. You have already heard the other contributions, and I understand that you want to make a statement and a contribution yourselves.

480.

Mr Mellon: We would like to spend about five minutes elaborating on some of the points we made in our written submission. I will try not to duplicate too much of what has been said before, but it might be a bit difficult to avoid that.

481.

The RSPB is a charity which campaigns for the protection of wild birds and their habitats. We currently have about a million members across the UK, and about 10,000 of those live in Northern Ireland. A major element of our work is to ensure the protection and management of our best wildlife sites.

482.

Strangford Lough fits that bill. It is one of the most important sites in Northern Ireland and has been recognised by the Government as a site of international importance for its natural resources and birds - our specific interest. Because of its importance, Strangford has been designated as an area of special scientific interest as well as a special protection area (SPA) under the EU Birds Directive. The Government are required to protect these SPAs to ensure the survival of the bird populations they support.

483.

Strangford is also a candidate for a special area of conservation (SAC) designation under the EU Habitats Directive. This directive requires member states to establish the necessary conservation measures for these SACs.

484.

Protection of these designations in Northern Ireland is mainly provided by two pieces of legislation: the Nature Conservation and Amenity Lands (NI) Order 1985 and the Conservation (Natural Habitats) Northern Ireland Regulations 1995. However, the introduction of tractor- dredging for cockles in Strangford Lough has exposed a major gap in this legislation: fisheries in inter-tidal areas cannot be regulated. This could have led to, and could yet lead to, a breach of the Birds and the Habitats Directives. Conservation organisations quickly recognised the problems with this loophole, and that is why we and our colleagues support the amendments to the Fisheries Act so strongly. There is a need to be able to regulate fishing activity within the inter-tidal zone, and an there is an immediate need to prevent further damage to Strangford Lough by dredging for cockles by mechanical means.

485.

Currently, Strangford Lough is the only Northern Ireland site to have been affected, so it is apposite that the regulations should relate directly to Strangford. However, there are cockle stocks in sites such as Dundrum Bay and Carlingford Lough, which could be exploited in a similar way, so it is important to introduce regulations relating to those sites at a later date if required.

486.

I want to expand briefly on the effects of tractor- dredging as we in the RSPB understand them. Our concerns in Strangford relate mainly to its effects on three species of birds: the pale-bellied brent-geese, oystercatchers and knots. The last two are species of wading birds.

487.

Let me begin with the brent-geese. Internationally important numbers of these geese use Strangford Lough each autumn and winter. In fact, at least 60% of the entire world population of this particular bird comes to Strangford Lough. Any site which regularly holds a minimum of 200 of these birds can be considered of international importance for brent-geese; Strangford Lough regularly holds 11,000 or more. This gives an indication of just how important the lough is.

488.

These geese feed on eelgrass which grows on the mudflats of Strangford Lough and is exposed at low tide. They depend on this grass for their survival during their stay on the lough. Tractor-dredging destroys eelgrass growing on the surface of the mud, and a study on the Solway Firth in Scotland found that tractor-dredging reduced the density of the eelgrass there from 75% cover to just 5% cover. When 11,000 brent-geese are vying for eelgrass at Strangford, the effect on the species is disastrous.

489.

Strangford Lough is of national importance for oystercatchers. Regularly, over 6,000 birds use the lough. On Strangford these birds feed primarily on cockles, probing in the mud to get them out. Knots feed on other invertebrates as well, so they are not quite so badly affected. Oystercatchers rely particularly on cockles to get them through the winter; it fattens them up for their flight to their breeding grounds in the spring.

490.

There are two main ways in which the intensive gathering of cockles by tractor-dredging in particular can impact upon oystercatchers. The cockle stocks could be depleted by over-exploitation. This actually happened on the Dee estuary in England and Wales in the early 90s. Not only did the fishery collapse, but there was also a massive mortality of oystercatchers one particular winter.

491.

Disturbance can also be a problem. Dredging interferes with the feeding strategy of these birds in that they are disturbed from their favourite and best feeding areas. Their feeding time is reduced, and they waste a lot of energy flying to different places to find alternative feeding sites. They may also be crammed into smaller feeding areas, resulting in more competition for less food. All of this can have a serious impact on these thousands of birds, particularly when the weather is severe, and they are under stress.

492.

In some circumstances, disturbance caused by intensive handraking could be greater than that caused by tractor-dredging. Hand raking is more labour-intensive, as you get more people on the mudflats, which might cover a larger area. With an intensive handraking system, the disturbance can be quite severe. There has been a study on the Burry inlet in Wales, where commercial handraking is taking place. It has been found that this commercial exercise used up 25% of the available cockle stock. During some hard winters that can leave the oystercatchers and other birds under stress.

493.

The research at the Burry inlet also found that around 150 handrakers out at the one time could have a severe impact on cockle stocks. That research also indicated that small-scale commercial handgathering might still be compatible with the needs of birds within these protected sites. We have to be careful of the scale.

494.

From RSPB studies, we are not aware of any evidence of any detrimental effect to birds from individuals going out and gathering cockles. This activity is likely to be sustainable, both for the cockle stock and the bird populations. We do not want the legislation to affect the rights of individuals to take part in sustainable cockle collection. We do not believe that the Bill, as it stands, will not have any affect on that right.

495.

Finally the insertion of the power into the Fisheries Act to make regulations for environmental reasons will assist the Department in complying with its European environmental obligations under the Birds and Habitats Directives. We are not aware of any current or future affect on the remaining Northern Ireland fishing fleet. The pressing issue is the immediate need to make regulations relating to tractor-dredging on Strangford Lough. We certainly support the Fisheries (Amendment) Bill and reiterate the need for the regulations to be introduced as quickly as possible.

496.

The Deputy Chairperson: Do you see the result of this handpicking, and the various ways people go about it, as a threat to the environment?

497.

Mr Mellon: Handpicking or raking could be a threat to the environment, in the same way as tractor- dredging could be, if it were carried out on a large enough scale. The research we have relates to the Burry inlet, which is a smaller area in Wales not entirely the same as Strangford Lough. There it was found that 150 people handraking could have a serious impact on nature conservation interests. It is a question of scale. People who spoke earlier have indicated that what is happening now is not a problem, but if that were to be stepped up resulting in a more intensive situation, it could become a problem.

498.

The Deputy Chairperson: It is not a problem, therefore, if you keep it under control.

499.

Mr Mellon: Current handgathering is not a problem.

500.

Mr Kane: Do you feel that adequate resources will be provided to ensure that the regulations of the Bill will be enforced, or will this remain a toothless dog?

501.

Mr Mellon: If the regulations meet their objective to ban tractor-dredging from Strangford Lough, then that, in itself, will not require a great many resources. The resource implications will be in respect of the need to continue monitoring cockle stocks and the bird populations. The bird populations are monitored very well by the National Trust and other organisations, but the monitoring of cockle stocks is something that needs to be addressed.

502.

Mr Ford: First, I declare an interest, as I am a member of the RSPB. Secondly, the issue in respect of the Burry seems to be unclear from the evidence we have heard so far. It may be that a certain amount of hand dredging is acceptable, too much is not, and nobody is sure where to set the limit.

503.

Mr Mellon: That is a fair assumption. Work still needs to be done. A great deal of the work in the Burry inlet was carried out using computer and model simulation rather than actuality. There are not as many as 150 people gathering cockles in the Burry, as the Strangford Lough Management Committee said earlier. The Burry is considered to be sustainable at present, but research has shown that if the number of handgathers were stepped up to 150 or more, it would soon become unsustainable. More research needs to be carried out.

504.

Mr Ford: The RSPB is happy with the Bill at the moment, but there could be a problem with the monitoring of possible future regulations.

505.

Mr Mellon: The regulations which we have been promised relate to Strangford Lough. There is no need for further ones at this stage.

506.

Mr Paisley Jnr: As you know most of the discussions have been on this subject. On 6 October we adopted three amendments, which were proposed by the RSPB. These amendments were practical and sensible. Have we left any other practical and sensible amendments out of the Bill?

507.

Mr Mellon: We have no further amendments, other than those we have tabled already. The amendments are minor in some ways, but they will increase the effectiveness of the Bill. We received some correspondence from the Department of Agriculture and Rural Development on those proposals, and they are minded, at this stage, to adopt one of our proposed amendments but not the other two.

508.

Mr Paisley Jnr: Which one?

509.

Mr Mellon: It is the one relating to clause 2(1).

510.

Mr Ford: That clause relates to any vehicle or equipment which is being, or is reasonably suspected of having been, used in the commission of an offence.

511.

Mr Mellon: One of our amendments related to clause 2(1) (b) and (c) where we suggested including the words "or using". The Department is minded to accept that. Our legal staff are currently looking at the Department's response to the other amendments. We will respond to that when we get feedback.

512.

Mr Paisley Jnr: Will you keep us up to date on that?

513.

Mr McHugh: When tractor-dredging stops, will the number of people who will be replacing it reach the levels that you have mentioned? It could become a local thing. That would happen when the legislation takes effect. At present the Bill is not resolving that.

514.

Mr Mellon: It is difficult to anticipate whether the banning of tractor-dredging will lead to a great increase in gathering and raking, but it gives us cause for concern. There are enough organisations monitoring the situation on the lough, so that the need to bring in further regulations could be brought to the Department's attention.

515.

Mr Armstrong: If the RSPB is asked to do so, will it become actively involved in policing this?

516.

Mr Mellon: The RSPB manages one area of Strangford Lough as a reserve, but it is not likely to be a candidate for cockle exploitation. Most of the monitoring will fall to the National Trust and other organisations.

517.

Mr Molloy: Changes need to be made to the Fisheries Bill so that it covers environmental damage as well as the effect on cockles. Do you see any reason for an amendment to the Bill?

518.

Mr Mellon: Yes, it is important that the Fisheries Act 1966 be amended to include a clause whereby regulations could be introduced for environmental purposes. The reason I gave in my submission was that it would help the Department to comply with European Directives. The immediate need is for regulations to be introduced to address the matter of mechanical harvesting of cockles on Strangford.

519.

The Deputy Chairperson: You mentioned that there were something like 65,000 brent-geese. Do I take it that these geese do not breed on Strangford?

520.

Mr Mellon: There are about 11,000 birds on average- 60% of the world population. These geese breed in Arctic Canada and come to us every year.

521.

The Deputy Chairperson: Do they come for a rest?

522.

Mr Mellon: They come for a winter sojourn.

523.

The Deputy Chairperson: Are you happy enough with the Bill, or are there any amendments you think we should be considering?

524.

Mr Mellon: I will take Mr Paisley's point on board and provide the correspondence and any other updates in relation to the Department's views on our proposed amendments.

525.

Mr Paisley Jnr: Under clause 2 there is a section about fishing and fishermen and how the Bill could directly affect them. Is there anything in that part of the legislation that concerns you - although I know you have not presented any papers on that part?

526.

Mr Mellon: We did put forward a couple of amendments relating to clause 2, but they were dotting the i's and crossing the t's. They were proposals to includes words which we felt had been left out.

527.

Mr Paisley Jnr: Are fishermen not damaging RSPB activities?

528.

Mr Mellon: No, there was nothing fundamental in that clause that we needed to comment on.

529.

The Deputy Chairperson: Thank you for your contribution, Gentlemen.

530.

Members, you have heard the submissions to do with Strangford Lough - is there anything that we as a Committee need to consider?

531.

The Committee Clerk: As a result of the discussions, is there any new material that the Committee wishes to put to the Department? The intention would be to bring the Department back next week, and they have been given a letter with a series of questions that arose as a result of our earlier discussion. We hope to work through the Bill clause by clause and make recommendations for the amendments which have been already agreed, thereafter completing our report. We have virtually reached the end of our consideration of the Bill.

532.

Mr Armstrong: One thing I am concerned about - and this has nothing to do with the Bill - but if it were to be policed, we would not want the expense involved with that to be taken away from the Agriculture Department. There is little enough money in agriculture, and we do not need to police this - it is an environmental issue.

533.

The Committee Clerk: Do you want to make a point about costs and what the expectation of costs of monitoring might be?

534.

The Assistant Clerk: That question was asked on 29 September during the session with the Department of Agriculture and Rural Development, and they had envisaged no great resource implications.

535.

The Committee Clerk: That has, therefore, already been answered.

536.

Mr Paisley Jnr: The only other thing is to follow up the point that as we understand it they are seeking to challenge the amendments that have been put forward by RSPB. Perhaps they could explain their position on that.

537.

The Committee Clerk: This Committee has the right to make recommendations for whatever amendments it wishes, and the Department has no veto over that.

538.

Mr Ford: The Assembly makes the law, not civil servants - no disrespect meant. We will be better informed when we bring them back next week. I do not think we need write to them.

539.

The Deputy Chairperson: This session is now closed.

Mr K Pelan, Assembly's Research Services

Mrs E Cummins )
Mrs H Hagan ) Department of Agriculture
Mr C Hunter ) and Rural Development

540.

The meeting began without the witnesses present and the researcher briefed Members on the considerations so far.

541.

The Chairperson: I now ask Mr Kevin Pelan to brief us on the matters arising in relation to the Fisheries (Amendment) Bill.

542.

Mr Pelan: There are two issues that were raised by the Committee on 11 October, with the letter sent to the Department and the response from the Department to the Committee concerning those issues. The first was in clause 1, subsection 3 of the Bill, in relation to specified equipment. The question posed to the Department was: "Is dive collection covered under this Bill?" The Department responded that the Bill covered dive collection, since diving invariably takes place at sea. Although not specifically covered by the amendments of the Bill, dive collection is already covered by the Fisheries Act (Northern Ireland) 1966.

543.

The Chairperson: Could we take the issues piece by piece? You have heard what Kevin Pelan has said about this. Are we happy enough with that?

544.

The Committee Clerk: With the dive collection?

545.

The Chairperson: Is everybody happy about that? No objections? Can we pass that then?

546.

The Committee Clerk: There is no need for there to be anything in this Bill about dive collection.

547.

Mr Pelan: The second issue was in clause 1, subsection 4, which related to the insertion of a new section, 2A. This related to the natural beauty or amenity of marine or coastal areas, including their geological, physiographical, archaeological or historical features. In other words this was a catch-all approach by the Department. The question posed was: "What is the Department's objective and what does the inclusion of these areas in the Bill actually mean in practice?"

548.

The reason the Department included this particular wording was to underline its aim to parallel the EC Habitats Directive - for environmental purposes the foreshore needs to be protected from any fishing activity that is, in any way, damaging the environment. The Department is also trying to parallel the Environment Act 1995. This issue had been raised in the Strangford Lough Management Committee submission and possibly in that of the RSPB. They were concerned that the amended Bill did not go far enough in the implementation of the EC Habitats Directive. However, the Department says that implementation of the directive by the inclusion of this specific section 2A is its aim - "Our objective is to ensure the implementation of the obligations under the EC Habitats Directive is reflected properly and fully in domestic legislation."

549.

The Chairperson: Some Members were worried about compensation. The Department's reply says that "it is not general policy to compensate for curtailment of activity for environmental purposes", but also that it is not ruled out. However, the fishermen are going to have a rough time. The Minister mentioned that things are not looking good on cod recovery. It is unfair to require fishermen -when they are already in a plight - to do these things for the environment without being compensated.

550.

Mr Pelan: The amended Bill will restrict fishing only if it is shown that the fishing activity is having a detrimental effect on the environment. For example, if a new coral reef were discovered somewhere off the coast of Northern Ireland, the Bill would regulate fishing around that area. Did you not foresee, fishing activities being regulated in any way, for any other activity than environmental purposes?

551.

The Chairperson: But the argument fishermen put to me is that if anything were discovered, and somebody put a ban on that area, it would limit their field of activity for fishing. The fish that they could have caught in that area are no longer available to them. I am not saying that to you personally, but that is what they feel the result of this would be. I do not think they are going to find a coral reef in the Irish Sea. However, if something happened and a ban were put on part of the fishing area, then the fishermen should be entitled to compensation because they are limited in their ability to fish.

552.

Mr Pelan: It says in paragraph 7 of the Department's reply -

553.

The Chairperson: Clerk, could we go back to what I was saying?

554.

The Committee Clerk: Representatives of the Department are with us today. I suggest we let Mr Pelan finish his briefing.

555.

The Chairperson: I am sorry for ignoring them. My apologies.

556.

Mr Pelan: In the third paragraph of our document of 11 October we referred to "flora and fauna which are dependent on, or associated with, a marine or coastal environment." We raised the issue as to why flora is included in a Bill that aims to restrict shellfishing. The reason the Department is including flora, is that the Bill aims to regulate any fishing activity - specifically mechanical harvesting - that is having a detrimental effect on the environment. In the process of mechanical harvesting, eelgrass beds are damaged. Eelgrass is the staple diet of brent-geese which over winter on Strangford Lough. That is why flora is being included. There is no intention to include any other flora. It is eelgrass that the Department has specifically in mind in relation to this particular aspect of the Bill.

557.

The Chairperson: Should it not be explained or defined? Fishermen are saying that this is a way for the Department to enlarge its powers. The Department describe things as generally as possible so that it can argue that it has authority under the Bill. When Government departments are considering a Bill, they are inclined to enlarge the scope as far as they can. This aspect needs to be defined.

558.

Mr Pelan: The Department's response to that is that it is required, under the EC Habitats Directive, to do something about a fishing activity that is causing damage to the environment, especially to an environment such as Strangford Lough, which has a number of designations.

559.

The Chairperson: The original purpose of this Bill was not to deal with flora.

560.

Mr Pelan: No, the original purpose was to deal specifically with the prohibition of mechanical harvesting in Strangford Lough.

561.

The Chairperson: Therefore the Department has spread its net a little further.

562.

Mr Pelan: One cannot get away from the fact that mechanical harvesting is damaging the eelgrass beds. The Department feels that it is obliged, under the EC Habitats Directive, to include this to protect the eelgrass beds.

563.

The Chairperson: This is really a technical argument between it and the fishermen. Most fishermen will come to the conclusion that this is like a mechanical hammer being taken to smash a very tiny nut. They feel that the Department has got away with this, and that it has enlarged the Bill beyond its original purpose. Is that a fair criticism?

564.

Mr Pelan: I can see the Department's point of view. I see the fishermen's point of view as well, of course. The Department will perhaps ask you whether fishermen are incurring any financial hardship because eelgrass beds are going to be protected under this legislation.

565.

The Chairperson: I do not think that the fishermen are too troubled about the primary purpose of this Bill. They worry that the Department is taking powers that go far beyond that. They worry that the Bill will be used against them. Something that was a small issue has become very large.

566.

Mr Pelan: The Departmental representatives can respond for themselves in a few moments. They are simply extending the Fisheries Act (Northern Ireland) 1966 to include the foreshore. They feel that it is necessary to include this in the amended Bill to comply with their obligations under the EC Habitats Directive, and they feel that it will not have a great impact on fishermen.

567.

The Chairperson: There is a big question about the foreshore. They fishermen say that it should not be enlarged. I am told that it could lead to a legal challenge. I do not know how true that is, but I could understand that there would be many people wanting to stake their possession. That is a matter for the Department.

568.

Would anyone else like to comment on that?

569.

The Committee Clerk: We were due to start our session with the Department at 10.30 a.m.

570.

The Chairperson: Is there anything else? I do not think the Department will push us for another five minutes.

571.

Mr Pelan: As guidance for the meeting, members should keep in mind the Committee's document and the Department's response.

572.

The Chairperson: No doubt the officials will give us a verbal response as well.

573.

Mr Pelan: I can provide advice and guidance on what was raised in the consultation documents you received. Paul Moore and I prepared the document detailing the issues raised by the Strangford Lough Management Committee and the Royal Society for the Protection of Birds, as well as the Department's response. Perhaps members could keep those three documents in front of them to guide them through the meeting.

574.

The Chairperson: The three documents we should have before us are the Committee considerations on the clauses relevant to the Department of Agriculture and Rural Development, the amendments, and these specific comments with which you have dealt. Is there another document?

575.

Mr Pelan: The first document is the letter from the Committee to the Department dated 11 October. The Department's response to that document is dated 17 October. There is also the document that Paul and I produced on Committee consideration of the clauses relevant to the Department of Agriculture and Rural Development in the Fisheries (Amendment) Bill. Those three documents provide more than enough information.

576.

The Chairperson: Perhaps the departmental representatives could now take their seats. Members have before them a Committee consideration on clauses relevant to the Department of Agriculture and Rural Development. The Committee Clerk will read us the relevant paragraphs, and the Department will respond.

577.

The Committee Clerk: As members are aware, only two clauses in this Bill are relevant to the Committee.

578.

The Chairperson: We are very grateful for that.

579.

The Committee Clerk: Having considered clause 1 and clause 2, this Committee will prepare a short report to the Committee for Culture, Arts and Leisure advising it of any conclusions we have reached and proposing any amendments that the Committee agrees today. No issues have been raised about clause 1, subsection (1). Chairman, you may wish ask if the Committee is satisfied with clause 1, subsection (1) and is prepared to move on to clause 1, subsection (2).

580.

The Chairperson: Is the Committee satisfied with the clause 1, subsection (1), which states that section 124 of the principal Act - the Fisheries Act (Northern Ireland) 1966 - shall be amended?

581.

The Committee Clerk: The Royal Society for the Protection of Birds raised an issue concerning clause 1, subsection (2). It suggested a change along the following lines

"The power to make regulations under sub-section 124 (1) above by virtue of this sub-section [26(3)] is in addition to, and not in derogation from, the power to make regulations under sub-section 26(1) otherwise than by virtue of this sub-section [26(3)]."

582.

This is equivalent to that contained in the Environment Act (1995). The Royal Society for the Protection of Birds believes that this would be necessary to ensure that the original purposes of section 124 (1) and (2) of the principal Act are maintained and not diminished by clause 1 (4) of the Bill. The Department of Agriculture and Rural Development responded to that and indicated that it did not believe that section 124 (1) and (2) would be diminished by clause 1 (4).

583.

The Chairperson: The information I received was that the amendment does not diminish the original Act. This particular amendment is unnecessary.

584.

Mrs Hagan: The Department received a letter from the Royal Society for the Protection of Birds yesterday afternoon stating that it is content that this is no longer an issue.

585.

The Chairperson: There is no point in wasting our time on that then. Are we all happy about that?

586.

Mrs Hagan: Could I intervene in relation to clause 1?

587.

The Chairperson: We have no prohibition on women addressing our meeting. We are absolutely free on that matter.

588.

Mrs Hagan: In the previous session when you took evidence from us I mentioned the difficulty with the term "foreshore" and that I was seeking legal advice on that. I provided you with a chart to explain where the gap was. We have now received further legal advice and the word "foreshore" will not be used in the Bill. This term will be changed to "Northern Ireland inshore waters". Use of this term ensures that the area covered by the regulations extends right up the high-water mean median. In future, reference will be made to "Northern Ireland inshore waters," as opposed to "foreshore".

589.

The Chairperson: Could we have a copy of that amendment?

590.

Mrs Hagan: Yes. I can send that to you.

591.

The Chairperson: We have had a lot of representation on that and the legal issues. It seems wise that we change the phraseology to "Northern Ireland inshore waters".

592.

Mrs Hagan: This is in line with the phraseology used in Scotland when the legislation was amended there.

593.

The Chairperson: Once we have seen this amendment, would we be happy to let the Department go ahead with this change?

594.

Mr Ford: I have difficulty at the moment. I understood that we had a Bill from the Department. Are we being told that the Minister is proposing to amend this Bill after the Committee Stage? What are our procedures? Perhaps the Committee Clerk could advise me?

595.

The Chairperson: This is quite normal. Even when a Committee Stage is completed, the Minister can make amendments. Of course, the House, the final arbiter, would have to accept the changes. It would have to be moved. This is only a draft Bill. It would still have to be moved, would it not?

596.

Mrs Hagan: Yes.

597.

The Chairperson: This would have to be an amendment from the Department.

598.

Mr Ford: I appreciate the point, but I am not sure that we can consider anything other than the Bill forwarded to us by the Assembly. I am not happy - with no disrespect - that we are now considering verbal amendments. I do not have a hang-up about this issue, but I think it is a matter of principle.

599.

The Chairperson: We ourselves made representations on this issue. People were not happy about the term "foreshore".

600.

Mrs Hagan: That is right. It was raised during the debate at the Second Stage.

601.

The Chairperson: Personally I do not take Mr Ford's view that the Minister cannot introduce amendments this way. It is not abnormal.

602.

Mr Ford: I am not disputing the right of a Minister to move an amendment when it comes back to the Assembly. I am merely concerned about what this Committee is actually considering. I thought we were considering the Bill, which had received a Second Reading, and not verbal amendments suggested to it. I do not know how we can decide on anything other than what has been officially given to us by the Assembly.

603.

The Committee Clerk: The way in which this procedure works is that the Committee, having considered the Bill, makes its own proposals for recommendations and lodges those with the Business Office. If the Minister has advised the Committee that she intends to make an amendment we would take note of that. The Committee may well decide to recommend the same amendment or it may decide to oppose it. However, it is within the procedures of the Assembly for amendments to be proposed by the Minister after the Committee Stage has effectively ended and at any time up to the Consideration Stage of the Bill.

604.

The Chairperson: If we were at the Committee Stage, in the House of Commons, the Minister herself would be with us going through the Bill. The Minister is not here but is indicating through officials that these are the amendments she will be making. At Westminster the Committee puts forward the amendments that it wants. The Minister can come along and propose making changes on certain matters. That would be entirely in order at Committee Stage.

605.

The Committee Clerk: You have to remember, Chairman, that the Committee Stage at Westminster is different in that the Bill is actually amended. The Bill then goes back as amended.

606.

To get through this little hiccup, I suggest that we receive a copy of the proposed amendment from the Department. The Committee can then return to clause 1 subsection (2) and satisfy itself if it is content or not content with that subsection as amended. If the Committee is not content it can propose a different amendment.

607.

Mr Paisley Jnr: Could I hear the definition of Northern Ireland inshore waters again?

608.

Mrs Hagan: "For the purposes of subsection (1), Northern Ireland inshore waters means the area adjacent to the coast of Northern Ireland and to the landward of a limit of 6 miles from the baseline from which the breadth of the territorial sea is measured, up to the mean high-water mark of ordinary spring tides."

609.

The Chairperson: That is a very technical definition. What is the mean high water mark?

610.

Mrs Hagan: The mean high-water mark is the highest point of the foreshore and is calculated on an average basis so that it comes up to the top point of what would be considered the foreshore. The definition will cover right down into the sea.

611.

Mr Paisley Jnr: Yes, is that for six miles?

612.

Mrs Hagan: Yes that is right.

613.

Mr Paisley Jnr: A quarter of the way to Scotland.

614.

The Committee Clerk: I wish to obtain the Committee's agreement that we will return as a Committee to consider clause 1 subsection (2) once the Department has provided a note of the amendment.

615.

The Chairperson: The Department would need to get that to us as quickly as possible. We thought that we could have finished this business, but we will need to come back to that.

616.

The Committee Clerk: Could we now consider clause 1 subsection (3)? It was on this subsection that the Strangford Lough Management Committee sought clarification as to whether the current wording would allow the Department to regulate or ban any or all types of harvesting, including hand collection. It said that this may not be sustainable in Strangford Lough. The National Trust also believes that the regulation should cover all aspects of shellfish harvesting, particularly where it is carried out commercially. The Department's letter of 7 October advised in paragraph three that hand-collection - that is using rakes or spades - can be regulated, if its intensive nature is causing harm, because of the word "equipment" in the Bill.

617.

The Chairperson: I do not agree with the National Trust that the regulations should cover all aspects of shellfish. It has happened for years, and it is a right of the people in that area. Why should all aspects, including hand-picking, be suddenly stopped? It will be used again. The fishery people are generating a head of steam. Things that never should have been mentioned are creeping in. The National Trust wants everything to be covered by this regulation. Personally, I do not accept that - its powers are strong enough. I do not know what the Committee thinks.

618.

The Committee Clerk: There is a second part to the National Trust's submission which might give the Committee another motion to consider and seek views from the Department on. The National Trust contends that the inclusion of an additional example, presumably at clause 1, subsection (3), paragraph (ii), would specify hand-picking, and that would avoid any possible misinterpretation at a later date that hand-picking was not envisaged in the legislation. The proposal is that on page 1, line 10 of the Fisheries (Amendment) Bill, insert after "equipment" - "whether mechanised or operated by hand". It may be appropriate to seek the Department's opinion on the effect, or necessity, of such a motion.

619.

The Chairperson: What does the Department think about this National Trust proposal?

620.

Mrs Hagan: We believe that the power is strong enough as it stands and that the definition of equipment includes spades and shovels. We do not want to regulate hand-picking, which uses the bare hand, because that might interfere with the common-law right to collect shellfish. We also need better evidence that this kind of hand-picking causes environmental damage. The Department's aquatic scientists have developed a model, which can be adapted to assess the impact of bare hand hand-picking. Our preference is to wait for concrete evidence, from an assessment based on that model, before deciding on the need to regulate.

621.

We do not wish to see hand-picking prohibited. If it is causing a problem, it would be preferable to introduce regulations that restricted it by designating specific areas or times for hand-picking, rather than an outright prohibition of the practice. The powers contained under section 124 of the Fisheries Act (Northern Ireland) 1966, which deals with conservation, are sufficient to do that.

622.

The Committee Clerk: I do not believe that the amendment implies that there would be hand-picking without using implements. The amendment seeks to clarify clause 1, subsection (3), paragraph (ii) of the Bill and change it to "fishing by means of a specified description of equipment, whether mechanised or operated by hand".

623.

The Chairperson: The National Trust wants to specify hand-picking; it wants the word "hand-picking" inserted into the Bill.

624.

Mrs Hagan: The intention of using the word "equipment" is to cover spades and shovels, and that could be clarified in the notes on clauses. When courts interpret primary legislation, they examine the notes on clauses to see what the intention is. That is one way to clarify the matter without putting something on the face of the legislation.

625.

The Chairperson: What do members of the Committee think about that?

626.

Mr Savage: I think that has covered it very well. I think that the equipment is well explained. To legislate for people not to use their hands would actually change the meaning and direction of the Bill.

627.

The Chairperson: I do not think that would be right, and I agree with the Department that common law could cause it great difficulty.

628.

The National Trust is a fierce body. I have not been on the side of the National Trust in relation to many of my constituents' matters because it asks for things that are absolutely ridiculous. It thinks that it can take over everything. Even farmers in areas skirting National Trust land have had terrible trouble with it. I think that this suggestion is a bit excessive. I certainly would not like the word "hand-picking" put into this Act. I would not vote for that. Is that the general mind of the Committee members?

629.

Committee members: Yes.

630.

The Chairperson: We will leave that matter there. We look forward to getting the Department's amendment on the definition of foreshore.

631.

The Committee Clerk: The next subsection is clause 1, subsection (4). This is where the Northern Ireland Fish Producers Organisation and the Anglo North Irish Fish Producers Organisation raise concerns about regulations for environmental rather than for fisheries management reasons. The Committee asked about the Department's objectives and definitions on environmental purposes. It also checked whether the legislation could extend to the fishing fleet, why such a wide power was necessary, and whether the Department of Agriculture and Rural Development would compensate fishermen for the curtailment of fishing activity. As Kevin Pelan said earlier, the inclusion of flora and fauna was also raised with the Department.

632.

The Department's letter of 17 October explains that the Department already has powers relating to the conservation of fish stocks. It states that the objective is to implement the Department's obligations under the EC Habitats Directive. The power to regulate for environmental purposes, and the extension of that power to include the foreshore, are necessary to enable the Department to regulate shellfish collection for environmental purposes.

633.

The letter also explains that the Department has powers relating to the conservation of fish stocks as seen in the cod recovery plan; that it cannot envisage the application of the powers to the fishing fleet; and that the environmental purposes must be linked to a fishing activity. Compensation is not ruled out, but it is acknowledged that it is not the general policy of Government to compensate in these types of areas.

634.

Flora and fauna are included since the mechanical collection of shellfish damages the eelgrass beds on which waterfowl depend for overwintering.

635.

Basically, those are the issues and the responses from the Department.

636.

The Chairperson: How do members feel about that? I think that some worry has been expressed about the adding of flora.

637.

The Committee Clerk: The explanation from the Department is that mechanical harvesting not only denudes the habitat of shellfish but that it also destroys eelgrass beds which are vital for the overwintering of wildlife. You may want to pursue that further with the Department.

638.

Mr Savage: It is only natural that that would happen with mechanical harvesting - it would not happen if they were lifted in the normal way.

639.

The Chairperson: If there were no mechanical harvesting it would take a long time. It seems to me that the Department is widening the scope of this Bill. That has to be balanced with whether the mechanical operation is damaging the particular habitat. We are not experts on these things. I am only taking a common sense view on it.

640.

Mr Hunter: We are required under the Habitat Improvement Regulations (Northern Ireland) 1995 to exercise our powers as a competent authority in respect of the EC Habitats Directive. It is quite broad in its intent in that either under the Habitats Directive or the Birds Directive -

641.

The Chairperson: What was the second directive you mentioned?

642.

Mr Hunter: It is the EC Directive on the Conservation of Wild Birds. That includes any activity which damages the birds or their habitat. We have to be mindful of that. One of our concerns about mechanical harvesting is that the harvesters could damage the eelgrass and a species of marine alga or seaweed called enteromorpha. They are both standard food sources for the brent-geese.

643.

Mr Paisley Jnr: It is logical that, to protect shellfish, it is important to protect their living environment.

644.

Mr Bradley: What does eelgrass look like?

645.

The Chairperson: It is green.

646.

Mr Hunter: It is green, stringy and it is found in the inter-tidal area. We can provide pictures if that would help the Committee.

647.

Mr Bradley: Is it mixed with seaweed?

648.

Mr Hunter: It grows on its own. The other seaweed is called enteromorpha, which does not have a common name. It is the green slimy seaweed that one often sees on foreshores.

649.

Mr Bradley: We call that seaweed.

650.

Mr Hunter: It is not like the normal brown seaweed that one might one associate with a more rocky foreshore. It is a green weed.

651.

Mr Armstrong: Is it very deep rooting?

652.

Mr Hunter: No. That is one of the reasons why it can be badly disturbed by mechanical harvesting. It is quite sensitive to that kind of disruption.

653.

Mr Savage: The experts here today have given us some good advice.

654.

Mr Bradley: Are we dealing specifically with Strangford Lough or with Northern Ireland foreshore waters in general?

655.

The Chairperson: There is little or no grass in the waters. It is on the real foreshore. This is a Strangford Lough Bill.

656.

Mrs Hagan: The power contained in the Bill could be used to regulate any stretch of Northern Ireland inshore waters around the coast of Northern Ireland. However, the subordinate legislation will be restricted to Strangford Lough because that is where the problem is at the moment. If a similar problem arose elsewhere we would not have to go through the procedure of getting another primary power - we would have the power to be able to move quickly to control that activity on another stretch of inshore waters.

657.

Mr Bradley: Would it put pressure on any other area if we closed off Strangford Lough to mechanical harvesting?

658.

The Chairperson: You mention Strangford Lough, but the legislation allows the Department to make regulations, under the same terms, for any part of the waters around Northern Ireland. Places such as Greencastle and Carlingford Lough could, therefore, be included in a separate regulation.

659.

Mr McHugh: I have no difficulty in relation to the habitat. If actual damage is being done by mechanical operations, then we cannot stand in the way of the legislation.

660.

Mr Bradley: What is the likelihood of the machinery moving out of Strangford Lough and going somewhere else?

661.

The Chairperson: We are very keen for the Department to let us see these regulations.

662.

Mrs Hagan: The head of sea fisheries section has been advised to get them to the Committee as soon as possible.

663.

The Chairperson: Thank you.

664.

Mrs Hagan: I am not the head of sea fisheries section - or I would have brought them with me.

665.

The Chairperson: Are we happy then to accept this clause?

666.

The Committee Clerk: The Committee raised no matters in relation to clause 1(5). That finishes consideration of clause 1. Unfortunately, it is not possible to ask the Committee to agree that clause 1 stand part of the Bill as amended until it sees the amendments. It will be necessary to return to that.

667.

We now come to clause 2, subsection (1). The Royal Society for the Protection of Birds has suggested an amendment that would make the new subsection (1A), paragraph (b) of the principal Act consistent with subsection (1A) paragraph (e) and increase the effectiveness of the Bill. The relevant motion would be

"In page 2, line 10, after 'has been' insert the words 'or is suspected to have been'.

668.

That would tie in with subsection (1A) paragraph (e)(ii), which refers to

"any fish in respect of which an offence is being, or is reasonably suspected of having been, committed".

669.

That was the link that it made.

670.

The Chairperson: Is the Department happy about that?

671.

Mrs Hagan: No. The RSPB advised us of this proposal. We told them that although it seems to be consistent with the later part of this amendment, it is inconsistent with the powers that authorised officers currently have in relation to boats. An authorised officer has to witness the boat being involved in illegal activity before he can act. When he sees it involved in something illegal, he can board it, he can examine the fish and seize the boat.

672.

If we were to accept this amendment we would be increasing the powers of authorised officers in relation to vehicles and equipment beyond those that they have in relation to boats. We could be asked why we do not amend the powers in relation to boats, but that is outside the scope of this Bill.

673.

The Chairperson: That would bring a hue and cry from the fishermen. You would not get away with that.

674.

Mrs Hagan: The Department is very concerned that it is not seen to be acting merely on suspicion.

675.

The Chairperson: Fisheries Division receives calls from all kinds of people. Cranks will ring up and say "Do you know about mister so-and-so and what he is doing?" You could not work under those circumstances.

676.

Mrs Hagan: We are very conscious of that. Unfortunately, the Royal Society for the Protection of Birds wrote back to us last night to say that it has certain views on the Department's line and that it does not agree with us. We only received that letter early this morning. I have not had time to consider it but I will look at the matter in more detail. The Department's present view is that we do not want to increase the powers of authorised officers in relation to vehicles and equipment beyond what is essential.

677.

The Chairperson: I agree with the Department on that. To act on the basis of suspicion is very dangerous especially when the farming community and fishermen have their backs against the wall financially. It is not right that their work should be curbed by a "Big Brother is watching you" culture. People would think they were doing something wrong simply because a neighbour has taken umbrage at them and has rung the Department to complain. Things should remain as they are.

678.

Mrs Hagan: I am sure that there are human rights implications about acting on suspicion, although I have not worked through what those might be. We would be on very dangerous territory if we were to include such a provision.

679.

Mr Paisley Jnr: The Department's explanation is very helpful. Could you explain clause 2 subsection (1) where it mentions the inclusion of (1A)(e)(i) in section 174 of the principal Act? In particular, I would like to know how the phrase

"is reasonably suspected of having been, used"

complies with what you have just said.

680.

Mrs Hagan: That simply ties in with the power to seize the vehicle or equipment. The fisheries officer will have already witnessed those items being used illegally.

681.

Mr Paisley Jnr: Is it the case that he will have the right to seize the vehicle or equipment if he reasonably suspects that it has been involved?

682.

Mrs Hagan: Yes.

683.

The Chairperson: So there is no contradiction?

684.

Mrs Hagan: No.

685.

The Chairperson: Are we all in favour of that?

686.

Mr Ford: I accept that there is a difference when one gets down to the powers of seizure, but I do not see why there is such a human rights problem with amending clause 2(1) at line 10. There must be reasonable suspicion, and surely a large amount of regulatory activity in all kinds of areas is undertaken on the basis of reasonable suspicion. I do not buy the explanation that there is a major difference as to where reasonable suspicion comes in page 2 line 10 of the Bill as compared with lines 24 and 25.

687.

Mrs Hagan: When you are talking about giving authorised officers powers to enter vehicles and equipment you are giving them powers to enter private property. You would need to be sure that you have more than just a reasonable suspicion that something illegal has been taking place.

688.

Mr Hunter: In addition to that, we are talking about two different types of fishing machines. One type is fitted to a boat and the other to a tractor. There would not be parity between the two types of fishing activity if we were to increase the level of suspicion required, and increase powers granted, in respect of one but not in relation to trawlers or fishing boats, for example.

689.

The Chairperson: If we are not allowed to amend the legislation in respect of fishing boats, why should we amend it in respect of those who do not need to use a fishing boat, but who can fish with their hands? Why should a regulation apply when you are standing on terra firma but not when you have a boat under you? It would be creating a situation whereby the law on land would be stronger. It has been an accepted principle in fishing legislation for a long time that suspicion is not enough - there must be evidence.

690.

Mr Armstrong: Is it not possible that suspicions would be stronger because you are on land?

691.

The Chairperson: I do not know. Why - because you have your feet on firm ground?

692.

Mr Armstrong: It is because people have more opportunity to have a suspicion. They might not have the same opportunities to have a suspicion when someone is out at sea.

693.

Mr Hunter: From a practical point of view, if a fishery officer were to come to court and could not persuade it that he had actually seen an individual involved in fishing activity before he took action, I do not think we would get any further with that case. It would be thrown out of court. In sea fishing for example, if we wanted to take action against a fishing vessel for using an undersized mesh, we would have to have seen that net in the water, and we would have to board the boat and watch the net come on deck. We have to have that continuity of evidence. We would need that sort of continuity to take a prosecution in similar land-based activity.

694.

Mrs Hagan: Another example would be if someone had been using rakes or shovels to lift large quantities of shellfish from the foreshore, put them in the boot of a car and drove down the Newtownards Road. Someone could report that to us. We do not think that it would be right for us to act on a reasonable suspicion. We would have had to have seen the person digging on the foreshore and collecting the shellfish.

695.

The Chairperson: You said that you had received a reply from these people. Perhaps it would be better for us to hear your considered reply. We have to come back to this case anyway. It seems reasonable to me that we should see your reply, if that is all right with the Committee.

696.

The Committee Clerk: The next item is also within clause 2(1). It relates to paragraphs (b) and (c). The Royal Society for the Protection of Birds suggested two possible amendments to widen the scope of the powers of the authorised person, with the purpose of increasing the effect of the Bill. The first amendment is at clause 2(1)(b), which states

"require the attendance of the person in charge of, and any other persons in or on, the vehicle or equipment and require all such persons to do anything which appears to him to be necessary for facilitating the performance of his functions".

A motion, if the Members wish to consider it, would be

that at page 2, line 13 after "persons in or on" insert" or using".

697.

Mrs Hagan: We have no difficulty with that suggested amendment.

698.

Mr Ford: Can we take it from Mr Mellon's letter of last night that you have accepted the Royal Society for the Protection of Birds' suggestion on 2(1)(b) and that it has withdrawn the one on 2(1)(c)?

699.

Mrs Hagan: That is right.

700.

The Chairperson: Do any other members of the Committee want to make a comment on that now?

701.

Mr Kane: I am happy enough to accept it, Chairman.

702.

The Committee Clerk: Perhaps to facilitate David Ford's point, you should consider the second amendment and deal with the two together.

703.

Mr Ford: We previously agreed the Royal Society for the Protection of Birds one.

704.

The Committee Clerk: The second item raised by the Royal Society for the Protection of Birds related to Clause 2(1)(c) (I). The wording there is: any fish in or on the vehicle."

705.

The new part suggested is

"or collected by the vehicle".

Since the vehicle or equipment is considered private property, this amendment is thought unnecessary by the Department. The existing general powers of search already allow any fish collected by the vehicle or equipment to be examined, so the Department does not believe that this additional specific power suggested by Royal Society for the Protection of Birds is necessary. These powers already exist.

706.

Mrs Hagan: That is right. The Royal Society for the Protection of Birds has accepted that it is unnecessary.

707.

The Chairperson: We had already considered that.

708.

The Committee Clerk: We had considered it earlier, but it is the decisions that are made here today that count.

709.

The Chairperson: In view of the information, are all members of the Committee happy with that? - [Members indicated assent].

710.

The Committee Clerk: We need to deal with the first change. Is the Department content that the Committee recommends this amendment and puts it forward as a proposal from this Committee Stage of the Bill?

711.

Mrs Hagan: "Or using"? Yes, we are happy with that.

712.

The Committee Clerk: The motion would be

That the Committee considers that clause 2 of the Fisheries (Amendment) Bill (NIA 9/99) be amended as follows: page 2, line 13, after "persons in or on", insert "or using".

713.

Mr Paisley Jnr: I propose.

714.

Mr Ford: I second.

715.

The Chairperson: All in favour?

716.

The Committee Clerk: There is one other item. The Committee needs to finish off its consideration of clause 2. Subsections (2), (3), (4) and (5) have not been the subject of any further comment or consideration by the Committee.

717.

The Chairperson: So we could have

clause 2, subsections (2), (3), (4) and (5) stand part?

718.

Mr Paisley Jnr: No, I object until we receive the amendment to the definition of "foreshore" under (5)(a).

719.

Are we happy, Mr Chairman, for (2), (3) and (4) to stand part but to leave (5) until we get the definition?

720.

The Committee Clerk: The whole amendment will be followed through.

721.

Mrs Hagan: Yes, they will be amended.

722.

The Chairperson: Will we leave that then?

723.

The Committee Clerk: We need to return to clause 2.

724.

The Chairperson: We can do that when we get all these explanations. Then we can have each stand part.

725.

Mrs Hagan: Could I draw one further amendment to your attention? It is in clause 9, and I hope that the Committee will be happy with it.

726.

Mr Paisley Jnr: Does it affect us?

727.

Mrs Hagan: It relates to the coming into operation of the Bill. Subsections (2) and (3) of clause 9 indicate that this Bill will not come into operation until we have made an Appointed Day Order. We feel that that is rather cumbersome. The wording crept in because this Bill was originally part of a much bigger Bill to amend the Foyle Fisheries legislation, and it was inadvertently not taken out. We propose to delete (2) and (3), and to leave it that the Act can be cited as the Fisheries (Amendment) Act. It automatically comes into operation when it is made, so that saves time and effort.

728.

The Chairperson: We are all agreed on that? - [Members indicated assent].

729.

Thank you very much for your contributions. We look forward to finalising our consideration of this Bill when you send us the information.

Mr M Wilson ) The Committee Clerk
Mr P Moore ) The Deputy Clerk

Mrs H Hagan ) Department of Agriculture
Mr N Quinn ) and Rural Development

730.

The Deputy Chairperson: Mrs Hagan, Mr Quinn, you are both very welcome. We have received correspondence from Prof Brice Dickson and would like you to address his comments on human rights.

731.

Mrs Hagan: We only received Prof Dickson's letter on 9 November.

732.

The Deputy Chairperson: I just received it this morning.

733.

Mrs Hagan: We sent the letter to our legal adviser, and I received five pages of comments from him this morning. I have not had time to digest them fully, but I could try to paraphrase them if that would be helpful.

734.

The bottom line is that he does not see any merit in the objections raised by the Human Rights Commission. It is worth making that statement very clearly at the outset. The Commission is concerned that there is a breach, or a potential breach, of article 8 of the European Convention on Human Rights, which deals with the right to private life and the right to develop relationships with others.

735.

Our legal adviser has gone into some detail as to why he considers this irrelevant. He feels that even a cursory glance through the case law referred to in Prof Dickson's letter is sufficient to demonstrate that the reasoning of the court has no application to the powers contained in clause 2(1) of the Bill. Those powers relate to an individual's use of a vehicle or equipment employed in fishing, and they contain nothing that has any implications for an individual's right to develop relationships with other human beings.

736.

In this case, it certainly seems to be possible to distinguish between the private life of the individual carrying out the fishing and a business activity. The Department could point out that the Commission's letter has done no more than assert that the court was prepared to consider that respect for home and private life can include some places of work and some types of business activity. There is, however, nothing in the Commission's letter that constitutes an argument as to why that principle applies in the case of this Bill; the argument put forward in the letter can be rejected on that basis alone.

737.

The letter also discusses the right to the peaceful enjoyment of property. The Commission suggested that the Bill might also be in breach of that principle. The right to the enjoyment of property must be considered from two perspectives: first, the person's enjoyment of that property has to be in accordance with the conditions provided for by law; and secondly, any measures to control the enjoyment of that property must be in the public or general interest. The measures in the Bill are in the public interest. Our adviser says that where there has been interference with the peaceful enjoyment of possessions, the court must consider whether there has been a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights.

738.

It is important to take account of the fair balance principle in determining what enforcement provision to introduce. Our adviser's conclusion is that there are no grounds for saying that clause 2(1) of the Bill fails the fair balance test. He goes on to talk about seizure of property, with which the Bill also deals. His conclusion on that is that where property has been used in unlawful activity, there is ample authority for the proposition that it does not constitute a breach of the owner's human rights to seize it.

739.

It is perfectly feasible to seize property that has been used unlawfully. The Fisheries Act (Northern Ireland) 1966 sets out various provisions relating to seizure. The Act confers on the owner of the property a right of appeal in order to have it returned. There are adequate measures on seizure.

740.

Our adviser also says that for more than three centuries, it has been accepted that any discretionary power - such as the power that we are seeking - conferred on public authorities is not absolute, but is subject to general legal implications. In other words, our inspectors, be they fishery, veterinary or milk inspectors, must exercise their powers of inspection with due care and reasonableness and not in an arbitrary fashion. There are sufficient safeguards in the 1966 Act to allow us to proceed as we propose. The conclusion is that there is no merit in the objections raised by the Commission.

741.

The Deputy Chairperson: Can the Committee have a copy of your legal advice?

742.

Mrs Hagan: I am sure that that would be OK. I will have to ask our legal adviser what the convention is. If he cannot agree to your having a copy of his advice, he would agree, I am sure, to my paraphrasing it for you, if that would be helpful.

743.

Mr Paisley Jnr: I want to ask about the boarding of a vessel. Under the terms of the Act, would any official who boarded a vessel have had special training to do the job? Would the official have to demonstrate his or her identity and explain the purpose of the search? Would such officials have to produce a record of the procedures followed and details of anything that was seized during the search?

744.

Mrs Hagan: All of those things would happen. Authorised officers would be trained to carry out their responsibilities under the Fisheries Act (Northern Ireland) 1966. Officers are also specifically authorised under a particular piece of legislation; our Fisheries Inspectorate is authorised under the 1966 Act. They have a card that identifies that as the legal power of inspection, and afterwards a full report of any inspection would be completed.

745.

Mr Paisley Jnr: That is all covered by the Act? That is how you get the "due care and reasonableness"?

746.

Mrs Hagan: Yes.

747.

Mr Paisley Jnr: OK. Thank you.

748.

Mrs Hagan: Also, years of practice have given our inspectors experience in what is acceptable in court. If you want to pursue a case in court, you have to be sure that you have the right evidence. The inspectors have built up a lot of experience over the years about how to exercise due care, diligence, reasonableness and so on.

749.

Mr Paisley Jnr: There would be cases where, I am sure, there has been suspicion and an official has boarded a vessel, showed his identity card, carried out a search and found that his suspicion was not warranted. I am sure that there have been plenty of cases where that has happened, but that, again, is covered under due care and reasonableness.

750.

Mrs Hagan: That is right. An officer can board a vessel even without suspicion. He has a right to carry out an inspection. It is only when he is carrying out that inspection, if he then suspects that something contravening regulations is occurring, that he can take action.

751.

Mr McHugh: The key question is whether or not there are adequate and effective safeguards against abuse of authority. Your lawyer talks about a legal practice that has been applied for three centuries. That is all very well, but it has not always benefited us to apply such old principles. There is also a thin line between the right to private life and developing relationships and the idea of due care and suspicion. We want to safeguard ourselves. Are you satisfied that your lawyers have looked into it enough to make sure that we are not going to come a cropper at some point?

752.

Mrs Hagan: Absolutely. Even before receiving legal advice, it would have been my view that the powers we are seeking were the minimum necessary to actually enforce any regulations we would make under the regulating power acquired by this Bill. They will not be doing anything more than or different from the powers that an authorised officer already has.

753.

The Human Rights Commission suggests that where it is suspected that something is happening illegally, a warrant should perhaps be obtained from a Justice of the Peace (JP). We view that as impractical. If you see an activity that you suspect is illegal, by the time you go and get a warrant from a JP and come back six or seven hours later, or a few days later, you are not going to find anything illegal. We looked at that suggestion and tried to think of other ways that this power could be enforced, but we can come up with nothing that would be any better or provide the right enforcement powers that an authorised officer would need. On the basis of what I have been able to glean from the legal advisor's opinion on the Human Rights Commission's letter this morning, I am completely satisfied with it.

754.

Mr McHugh: When the Commission comes forward with an objection, there is usually something behind it. Human rights matters - police officers boarding boats, or even vehicles - have always been a difficult area.

755.

Mrs Hagan: Our legal advisor's opinion is that the Commission has fundamentally misunderstood what we are trying to achieve. I cannot really go in to the background of that without actually reading his letter in more detail. I can provide you with that detail either by copy of his letter or by paraphrasing it, as I have already said.

756.

Mr McHugh: I would like to have a copy of it.

757.

The Deputy Chairperson: The Committee has a right to ask for any document. We do not want to force the issue, but we would like it. I do not think it would be right to ask the Committee to approve something that it has only had sight of for a short time. Obviously, we will have to come back to this when we have had time to go over it.

758.

Mrs Hagan: Absolutely.

759.

Mr Bradley: For the purpose of the Bill, is it correct to describe harvesting and collection as fishing?

760.

Mrs Hagan: Yes. If they are using a mechanical harvester, they are collecting wild shellfish from the foreshore. Even collecting fish with a bucket and spade is fishing. The traditional view of fishing is of an activity done with a rod and line or from a boat, but mechanical harvesters are being used as well.

761.

Mr Bradley: Throughout the Bill, there is reference to harvesting and collection.

762.

Mrs Hagan: Terminology changes over time and with advances in equipment. Five years ago mechanical harvesters were not in use anywhere; they are a recent development. We have to keep up with progress.

763.

Mr Bradley: Is a fishing rod still recognised?

764.

Mr Armstrong: Trawling counts as mechanical harvesting.

765.

Mrs Hagan: Trawling with nets at sea?

766.

Mr Armstrong: That is mechanical harvesting.

767.

Mrs Hagan: Yes, but traditionally it is referred to as trawling.

768.

Mr Armstrong: Yes, I know, but it is still mechanical harvesting.

769.

The Committee Clerk: Chairman, the Committee feels that, considering the urgent need to finalise the Bill, it would be of immense help to the Committee if it could see the papers containing the legal advice given to the Department.

770.

Mrs Hagan: I can have them faxed to you this afternoon; I only need to make a phone call.

771.

The Deputy Chairperson: The Minister's letter of 16 November contained proposed amendments. Perhaps you could explain them to the Committee, Mrs Hagan.

772.

Mrs Hagan: The Bill, as it stands, uses the term "foreshore," which is generally accepted as the area between high water mean median tide and low water mean median tide. Does the Committee still have the diagrams that I provided at our last meeting? I am sorry, but I have not brought any extra with me. However, you will recall that that is the commonly accepted definition of "foreshore." That leaves an area between low water mean median tide and the Lowest Astronomical Tide, which quite often remains uncovered by tides. This intertidal area is not covered by the definition of "foreshore." It is an area that is rich in wild shellfish and that could easily be exploited. It may remain uncovered by tidal movements for up to eight days a month.

773.

We wanted to ensure that any regulations we made would cover the entire area right up to the high water mean median tide. Following legal advice, we would like to replace the term "foreshore" with "Northern Ireland inshore waters," as defined in the Minister's letter. That will ensure that the regulations apply from high water mean median tide right down into the sea, in fact six miles into the sea.

774.

The Deputy Chairperson: It is the limit of six miles from the baseline that concerns us.

775.

Mrs Hagan: That is a generally accepted definition of "baseline" in navigation and fishing. It is not a new term that we are introducing. It is a term used to describe the baselines around the British Isles.

776.

Mr Bradley: Is there any bearing on the custodians of the foreshore? Will paperwork have to change? For example, we refer to Newry and Mourne District Council as the custodians of the foreshore in Carlingford Lough.

777.

Mrs Hagan: Only if it suits the particular purposes of Newry and Mourne District Council. This definition will only apply in relation to the 1966 Act.

778.

Mr Armstrong: What if six miles into the ocean takes you into someone else's territory? If each territory had six miles and there were less than 12 miles between them, what would happen?

779.

Mrs Hagan: That is not the case here.

780.

Mr Armstrong: It might be the case somewhere else.

781.

Mrs Hagan: It might be the case somewhere else, but not here. That is the standard definition applied when you seek powers to control something on the foreshore and you want to include the intertidal area. That is the definition used in Scotland. We have not created a new definition. Our definition is an exact parallel of what already exists in UK legislation.

782.

Mr Paisley Jnr: Does that mean that the gap between the mainland and Rathlin Island is all Northern Ireland inshore waters?

783.

Mrs Hagan: If the distance is less than six miles.

784.

Mr Bradley: That could start a territorial war between Scotland and Northern Ireland.

785.

Mrs Hagan: That would not affect what we are trying to regulate by acquiring this power.

786.

Mr Armstrong: If we support it now, it may come back to haunt us later.

787.

The Deputy Chairperson: We are concerned about the word "foreshore." Would you like to elaborate on that?

788.

Mrs Hagan: The word "foreshore" will not appear in the legislation. It will be replaced by "Northern Ireland inshore waters."

789.

The Deputy Chairperson: Right.

790.

Mrs Hagan: Where you see "foreshore", that will be deleted. The reference made will be to "Northern Ireland inshore waters."

791.

The Deputy Chairperson: There is no amendment to the title: "Regulation of sea-fisheries in or on the foreshore." The word "foreshore" on page 1, line 4 would be replaced, but the title would not be amended.

792.

Mrs Hagan: I asked the Office of Legislative Counsel about that, and they said that it is not appropriate to amend the title of a clause. It is sufficient to amend the clause.

793.

Mr Armstrong: If we agree this amendment today, and the change "foreshore" to "Northern Ireland inshore waters", I am concerned that when we consider another Bill you would be saying to us that this definition was acceptable previously.

794.

Mrs Hagan: Your objections to future clauses would not be based on the "Northern Ireland inshore waters" definition. They might be on other grounds.

795.

Mr Armstrong: It could cause problems in the future, and I would like it sorted out properly now.

796.

Mrs Hagan: Is there something else I can tell you? I have explained that we are changing the word "foreshore" to ensure that the gap between low water mean median tide and Lowest Astronomical Tide is covered. You cannot use the term "foreshore" if you want to cover that particular area. We are not changing the policy, or the area under which we regulate. We always wanted to regulate this area. However, we discovered that the word "foreshore" did not cover correct area. We are now rectifying that, but we are not doing anything different in the legislation. We are closing a potential loophole by dropping a definition that does not cover a sufficient area.

797.

Mr Armstrong: It is covering more area than we need to cover. The word "foreshore" was not covering enough, but is this not covering too much?

798.

Mrs Hagan: No, because once you are below the Lowest Astronomical Tide, you are in the sea and we already have powers to regulate within the sea. All fishing activity within the sea can be regulated. You are possibly being confused by the term "six miles". It seems a long distance into the sea, but that is a standard definition, with regard to base lines. The Department always had the power to regulate within the sea. We are just ensuring that the regulating power comes right up past the Lowest Astronomical Tide, that is, from low water mean median tide right up to high water mean median tide.

799.

The only new area for us to regulate is between what is called the Lowest Astronomical Tide and high water mean median tide.

800.

The Deputy Chairperson: Are you dropping one definition and introducing another?

801.

Mrs Hagan: We are inserting another definition, but there is no change in policy. It is just to tighten this potential loophole. Indeed, there is an area, for eight days of the month, that is uncovered by the tide, unregulated by the Department, and that area could be exploited. It is very rich in wild shellfish.

802.

The Deputy Chairperson: Are you tightening up the regulation of that area?

803.

Mrs Hagan: We are tightening up a loophole to ensure that the Department has the power to regulate that area.

804.

Mr Armstrong: We should make the point that that is why we are doing it.

805.

Mrs Hagan: That was the point I was making.

806.

Mr Armstrong: The loophole has to be tightened because eight days in a month, the area is not covered by the tide and could be exploited.

807.

Mrs Hagan: Yes.

808.

Mr Bradley: That is the answer to my question. I was concerned there was going to be changes later. Will the foreshore, as it is defined today, remain the same for all other legal purposes?

809.

Mrs Hagan: That term will remain a commonly used term. But for the purposes of the Fisheries Act (Northern Ireland) 1966, we are using the term 'Northern Ireland inshore waters', which includes the foreshore and the bit below it.

810.

Mr Paisley Jnr: With regard to the regulation of sea fisheries in or on the foreshore, there has been some confusion about definitions. Now that we have agreed a definition that is acceptable and clarifies the situation, would it not be wrong to have a Bill that has two headings - a confusing one and the one which we have accepted as a good definition? Would you ask the Department to remove all references to foreshore, including those in the headings.

811.

Mrs Hagan: I can certainly ask the Department to consider that point.

812.

Mr Paisley Jnr: When the Bill comes before the House, people will want to know the difference between "foreshore" and "Northern Ireland inshore waters", and there is a difference. The "foreshore" is a smaller area, whereas the term "Northern Ireland inshore waters" covers the area from foreshore right out to the Lowest Astronomical Tide.

813.

Mrs Hagan: I will ask the Department to review the advice they previously gave me.

814.

The Deputy Chairperson: The contents page will also need to be reviewed. Have members any other points to raise about the amendments?

815.

The Committee Clerk: We may wish to formalise the acceptance of the amendments. In page 1, line 4 of the Bill leave out "or on the foreshore" and insert "Northern Ireland inshore waters".

816.

The Deputy Chairperson: Does the Committee agree to that?

817.

The Committee Clerk: The second amendment relates to the same issue. Clause 1, page 2 at line 2, at end insert "(5) For the purpose of this section -

"Northern Ireland inshore waters" means the area adjacent to the coast of Northern Ireland and to the landward of a limit of 6 miles from the baseline from which the breadth of the territorial sea is measured, up to the mean high-water mark of ordinary spring tides; and

"sea fisheries" includes "any fishery within that area".

818.

The Deputy Chairperson: Does everybody agree? - [Members indicated assent].

819.

The Committee Clerk: The next amendment is an amendment to clause 2. At page 3, line 3 leave out subsection (5). This is the consequential amendment and it can also be considered.

820.

The Deputy Chairperson: Does everybody agree? - [Members indicated assent].

821.

The Committee Clerk: The other amendment is at the back of the Minister's letter dated 16 November. Clause 2, page 2, line 13, after "on" insert "or using". That amendment was formally adopted by the Committee at the previous meeting. Another amendment was agreed in principle at the previous meeting, and that is the final amendment in the Minister's letter. It relates to clause 9, page 4, line 31. leave out subsection (2). You may recall that we agreed that it relates to the manner in which this Bill was brought into operation. The Committee agreed in principle that it should be amended, but we did not have a specific amendment at that time for the Committee to adopt.

822.

Mrs Hagan: You are actually going to leave out subsections (2) and (3).

823.

The Committee Clerk: Yes. The motion therefore would be "That the Committee considers that clause 9 of the Fisheries (Amendment) Bill be amended as follows. At page 4, line 31, leave out subsections (2) and (3)."

824.

The Deputy Chairperson: Does everybody agree to that? - [Members indicated assent].

825.

The Committee Clerk: Finally, the only issue to be considered regarding the Minister's letter is the penultimate paragraph, commencing "Further I wish to advise the Committee". Perhaps the Committee should seek clarification as to the Minister's opinion on that particular proposal from the RSPB, to determine whether or not it is acceptable.

826.

The Deputy Chairperson: Mrs Hagan, would you like to take us through that last paragraph?

827.

Mrs Hagan: Section 174 of the Fisheries Act (Northern Ireland) 1966 Act deals with the powers of authorised officers in relation to boats. It states that "Any authorised person to whom this section applies may do, with respect to any boat employed in fishing". Therefore, the boat has to be employed in fishing. The RSPB amendment in relation to the powers of authorised officers in respect of vehicles and equipment suggested it should read "or is suspected to have been employed in fishing". If that amendment were accepted, an authorised officer could act on the basis of suspicion in relation to vehicles and equipment, but not boats. That would be inconsistent.

828.

The Deputy Chairperson: Is everybody agreed?

829.

The Committee Clerk: In that instance, there would be no amendment. Obviously, the Committee has to consider clause 2 in its entirety in light of the interest shown by the Human Rights Commission. At this point can I suggest that the Committee formally considers the question that clause 1 stand part of the Bill. There are no further issues relating to that clause.

830.

The Deputy Chairperson: Is everybody agreed? - [Members indicated assent].

831.

The Committee Clerk: There are other issues relating to the contents and the title, which we may return to and seek further advice on.

832.

The Deputy Chairperson: Is there anything else that Mrs Hagan or members want to raise? Thank you very much Mrs Hagan, I trust that you will fax that information through today.

833.

The Committee Clerk: Mr Deputy Chairman, we have made a slight error; it was my fault. Clause 1 as amended, should have been adopted to stand part of the Bill.

834.

The Deputy Chairperson: Is everyone agreed? - [Members indicated assent].

835.

The Deputy Chairperson: We are now getting into technicalities.

836.

The Committee Clerk: That was my oversight, Mr Deputy Chairman. There is one further matter that we can usefully look at, and that is a possible draft report which the Deputy Committee Clerk has prepared. It might appear premature in light of the fact that we have to return to the issue raised by Mr Dickson of the Human Rights Commission. However, it would be helpful for us.

837.

This is a shared Bill and this Committee is reporting on clauses 1 and 2 to the Committee for Culture, Arts and Leisure, which is dealing with the remainder of the Bill. There is a degree of time pressure involved. If the Committee agrees to the basic outline of the report, then I hope that immediately after the next Committee meeting, which will address the human rights issues, we could sign off the draft report, print it and forward it to the Committee for Culture, Arts and Leisure.

838.

We assume that our report will form a section of the overall report of the Culture, Arts and Leisure Committee. The contents of our report will probably be integrated into an overall table which the Culture, Arts and Leisure Committee will produce.

839.

There are various parts to our report. the report itself; appendix one, the Minutes of Proceedings; and appendix two, the minutes of our consideration of this Bill. There will also be annexes, including submissions from the Northern Ireland Fish Producers Association Ltd., the Anglo North Irish Fish Producers Association Ltd., Strangford Lough Management Committee, and two submissions each from the Royal Society for the Protection of Birds and the National Trust. There is also a letter from the Department of Culture, Arts and Leisure dated 3 October, a letter to the Department dated 11 October, the Department's response dated 17 October, and a letter from the Department of Agriculture and Rural Development dated 20 October.

840.

We shall also include the letter from the Human Rights Commission and, I assume, the legal advice from the Department, although we should perhaps consider whether it is appropriate for us to include such advice to the Minister. Perhaps, Mr Chairman, you will feel that it is not appropriate and should be omitted. However, I feel the letter from the Human Rights Commission should be included, since it will be taken in the light of the Minutes of Evidence.

841.

Mr Dallat: If one were included but not the other, someone reading the report would only get half the picture.

842.

The Committee Clerk: They would also have the minutes of evidence from today's session, where we thrashed out the decision, and the next, where we shall reach our conclusion. The report essentially deals with our consideration of the clauses. We are setting out that we have undertaken the Committee stage in respect of clauses 1 and 2. We have set out our approach and how we wrote to various organisations.

843.

Mr Bradley: I read somewhere that there was no response from Northern Ireland Seafood Ltd. What do they produce?

844.

The Deputy Clerk: They said that some of their members collected shellfish. They were interested, but they did not follow it up.

845.

Mr Bradley: It was surprising that they did not, for they had made some contact.

846.

The Deputy Clerk: I contacted them by phone. There was a negative response.

847.

The Committee Clerk: The report goes on to set out the various actions the Committee took. The part from paragraph 2.6 to paragraph 2.8 may need to be extended to take on board the letter from the Northern Ireland Human Rights Commission. We need to build in additional paragraphs. We can either insert it there or put it in later. The next section deals with the Committee's consideration of the clauses and it will set out the decisions taken on the various amendments, and whether clauses were adopted in their original format or as amended.

848.

Looking at how we have set that out, with a new section on the Northern Ireland Human Rights Commission, I feel instinctively that should be brought forward into the earlier section. It is simply part of the overall consideration of the Bill's various aspects.

849.

Are members content that the report so far is a fair reflection of the work the Committee has put into the Bill, and that it would form the basis for our final report?

850.

Mr Paisley Jnr: Are we going to include the diagram we received given that we spent some time exploring this definition, which is at the heart of the Bill? Hilda Hagan gave some interesting answers to Billy Armstrong's questions, when she said that all activities outside the Lowest Astronomical Tide are regulated anyway. The gap is between low water mean median tide and Lowest Astronomical Tide. It would make a lot of sense to include that diagram explaining the area where the gap falls. If members read the Bill in its current form, they would think it was an extensive power, which it is not. It merely tightens up an area where there appears to be a gap.

851.

The Committee Clerk: If the Committee wishes, the references will appear in our Minutes of Evidence, and we can attach the diagram as a document received from the Department.

852.

The Deputy Chairperson: Much of today's discussion hinged around that. It was a grey area, so the diagram should be included.

853.

Mr McHugh: Having read it, it would certainly invite a lot of discussion from others.

854.

Mr Bradley: Perhaps in 100 years' time they will know what we are talking about.

855.

The Committee Clerk: There is a section with various appendices that includes the letters from the Department. We will incorporate it into that list.

856.

Mr Paisley Jnr: In the body of the report, in paragraph 3.9, we should insert what was agreed on 17 November. That really is the crux of the Bill. Perhaps the explanation should go into the body of the report.

857.

The Committee Clerk: And we could include a cross-reference to the appendix number.

858.

The Deputy Chairperson: Agreed?

859.

The Committee Clerk: That is as far as we can take it. It would have been nice to finalise the Bill today but it was not to be.

Mr M Wilson ) The Committee Clerk

860.

The Committee Clerk: As you may recall, the Committee more or less completed its consideration of the Fisheries (Amendment) Bill at its last meeting. There was, however, the outstanding item of the issues relating to the Bill raised by Professor Brice Dickson of the Northern Ireland Human Rights Commission.

861.

In essence, Professor Dickson was concerned about possible human rights implications in two particular areas in the current drafting of the Bill. First, He was concerned that an inspection could take place without reasonable suspicion and about other stated cases, particularly involving searches, which, according to the Northern Ireland Human Rights Commission would breach the various human rights conventions.

862.

The second area of concern to the Northern Ireland Human Rights Commission was that materials could be seized without a judicial warrant, which, it believed, could also breach the various human rights conventions. At last week's meeting, the Department obtained the legal advice now before us. You may recall that Hilda Hagan took us through the letter, but we did not have it in front of us, which we now do. The letter in question was to Ms Hilda Hagan, dated 16 November, entitled 'Fisheries (Amendment) Bill - Comments by the Northern Ireland Human Rights Commission'. That first letter is in your folder.

863.

The second letter - which we issued today, since we only received it yesterday - is one I had requested as an additional piece of reassurance for the Committee. It is a minute from Percy Johnston addressed to myself. Mr Johnston is the legal adviser to the Assembly, and both pieces of advice, which I shall now summarise, address the issues raised by Professor Dickson. I shall start with the advice provided by the legal adviser to the Minister.

864.

He first suggests that the Northern Ireland Human Rights Commission's comments are based on two flawed propositions about convention rights and a misunderstanding of domestic law. The Department of Agriculture and Rural Development's adviser doubts whether article 8 of the European Convention on Human Rights can be applied to provisions such as those in the Fisheries (Amendment) Bill. He assesses the case of Niemetz v Germany, claiming it demonstrates that

"the reasoning of the Court (of Human Rights) has no application to the powers in subsection (2)(1) of the Bill".

865.

The Northern Ireland Human Rights Commission letter makes no attempt to argue why the Niemietz principle applies in this case. In the view of the Department of Agriculture and Rural Development's adviser, the argument can be rejected on that basis alone. The Northern Ireland Human Rights Commission's assertion that the powers in subsection (2)(1) may constitute an infringement of the right to peaceful enjoyment of property under article 1 of the First Protocol is accepted.

866.

The fact that provisions interfere does not constitute a breach of human rights. The question is whether interference is justified. The Department of Agriculture and Rural Development's legal adviser is suggesting that where there is justification for any search or inspection, there may not be a breach of the conventions. The court uses a "fair balance test" in such cases and the adviser can see no grounds for suggesting that clause 2(1) fails this test. The Court of Human Rights has explicitly endorsed the power of seizure in two cases. First,

"where property has been used in unlawful activity there is ample authority for the proposition that it does not constitute a breach of the owner's human rights to seize it".

867.

In other words, seizure is accepted by the Court of Human Rights when unlawful activity has been involved.

868.

The Human Rights Commission, in the view of the Department of Agriculture and Rural Development's adviser, has overstated the requirements for procedural fairness. There are general safeguards against irrationality and unfairness in the exercise of statutory authority. The adviser believes that

"these are entirely adequate to provide the safeguards required by the Humans Rights Commission".

869.

He is saying that in the procedures envisaged in Bill, and in the way that the fisheries laws work in general, there are safeguards against irrationality and unfairness in the application of those laws.

870.

Finally, the adviser concludes that there is no merit in the objections raised by the Human Rights Commission.

871.

That is a summary of the advice provided to the Minister.

872.

Mr Percy Johnston, our legal adviser, has provided us with some advice in a minute received on 22 November. Summarising the advice, he believes that the Bill's powers are to be used only for the purpose of enforcing regulations made under section 124 of the 1966 Act. These powers relate to entering and examination - he focuses on the word "examination". The Bill talks about entering and examining a vehicle or premises, which he believes makes it distinct from search powers - the words used by Mr Brice Dickson when he talked about searching.

873.

The Deputy Chairperson: States: That is fairly strong.

"without the consent of the owner/occupier and with force".

874.

The Committee Clerk: On that point, it is quite clear that Percy believes the inspection powers would not involve the use of force, whereas search powers, which the police would possibly exercise when searching premises, could involve force.

875.

He then concludes that they do not require the strict safeguards which must accompany search powers. It is accepted that "reasonable suspicion" is not required before the powers of entry and examination can be invoked. However, it is argued that it is impossible to suspect that a breach of sea fisheries regulations has occurred without entry and examination. Mr Johnston is saying that, in a sea context, it is necessary to board the vehicle without suspicion in order to establish whether you have suspicion. You cannot really be suspicious until you have been on board.

876.

Mr Paisley Jnr: They go on board to do their job, which is to inspect. That does not breach anyone's human rights.

877.

The Committee Clerk: That is what the argument is here. Our adviser contends that to require reasonable suspicion would render the regulations unenforceable. In other words, if you had to be suspicious before you boarded a vehicle it would not be possible to apply the law.

878.

Mr Paisley Jnr: If you are an inspector you would not be doing your job.

879.

The Committee Clerk: That is the argument put forward here.

880.

The requirement of a warrant or judicial authorisation would similarly make the regulations unenforceable. The authorised person would have to leave the vehicle to obtain judicial authorisation, allowing the evidence to be disposed of. The adviser acknowledges that there may be issues under article 8 of the convention and article 1 of the First Protocol. The advice continues that the powers of entry, examination and seizure are justifiable if they are in the public interest. Those are further reasons given.

881.

In determining adequacy of safeguards, the nature of the powers and rationale must be taken into account. The existing safeguards are given in detail, and the Assembly's adviser concludes

"that the existing safe guards are adequate in view of the nature of the powers and their necessity in the effective enforcement of sea fishing regulations."

882.

That is the advice of both the Minister's legal adviser and the Assembly's own legal adviser, that the case put forward by the Human Rights Commission is overstated. The advisers believe that the requirements for procedural fairness are adequate to provide the necessary safeguards - there is no merit in the objections of the Commission.

883.

The Deputy Chairperson: Is the Committee agreed?

884.

Mr Paisley Jnr: Professor Brice Dickson is in danger of making a fool of himself. His organisation is so eager to have a case against the Government that they are making fools of themselves by pursuing the matter. As that letter contends, they have overstated their case. It has been brought to the attention of this Committee and is a last minute attempt for us to examine a human rights aspect that does not exist in the Bill. It demeans him and his organisation. It is important that that goes on record. I hope that in future the Human Rights Commission will pursue real injustices instead of pursuing these shadows.

885.

The Deputy Chairperson: Is the Committee agreed?

886.

Mr Ford: That is not entirely accurate, even by our advice. At the top of the second page of the memorandum there is an acknowledgement of issues that can potentially be raised. We may take the view that we have gone over the top, but it is not clutching at a straw that does not exist. The tenor of the advice is that the HRC has gone too far.

887.

Mr McHugh: You said "all agreed", but I do not agree with Mr Paisley's statement. Any issue, however small, has to be followed, as every area is part of the overall human rights issue. I am not against people examining things in detail to determine if it infringes. As we know, the use of force is a grey area. I have reservations regarding this use of force. If there were a similar situation on land, the use of force could be overdone.

888.

The Deputy Chairperson: Force cannot be used under the Act. Have we reached a recommendation? - [Committee indicated assent].

25 September 2000

The Bill seeks to extend authority for management of fisheries to the foreshore area (between high and low water marks) and control over vehicles used for fishing other than boats. The existing Fisheries Act does not cover these two areas which leaves foreshore fishing unregulated.

From the original Fisheries Act done in 1996 until recently this has not proved to be a significant omission. However, with the recent advent the tractor based mechanised cockle harvesting in Strangford Lough the need has been perceived to have legislation to manage such fisheries which elsewhere in the UK have proved over exploitive and have resultantly been banned.

Whereas in these extreme cases such regulating authority is appropriate there are other foreshore fisheries which have existed for centuries where it is probably not. Such fisheries are generally hand gathering type fisheries typified by periwinkle gathering but also extending to cockles, whelks, mussels, oysters and razor fish.

Traditional hand gathering rights have been established in a Court of Law in Belfast, High Court. An attempt to prevent periwinkle hand gathering in Strangford Lough by environmentalists legislation failed. This had been taken by the National Trust against a local gatherer.

The extent of hand gathering shellfish from the foreshore in Northern Ireland is, and always was extensive but official statistics only record a portion of the true take.

This draft legislation is worrying; in Section 1 (4) regulating authority is given for environmental rather than fishery management reasons. Thus powers to restrict all fisheries, not just foreshore gathering can now be exercised for environmental considerations rather than fisheries management reasons. This leaves the fishing industry exposed and vulnerable to pressure from the "green lobby" and gives us cause for concern.

We know hand gathering of periwinkles is high on the agenda for banning and we have witnessed unreasonable propaganda against the fishing industry by some of the more extreme environmental elements. Here we are giving them a stick to beat us with which might have extensive implications.

If the environmental wording is to stay we would wish for some checks and balances for its use. Recognition that the prime reason for Fisheries Regulations is for the management of fisheries not environmental protection which is better regulated elsewhere.

28 September 2000

This written submission on the Fisheries (Amendment) Bill has been prepared on behalf of the Strangford Lough Management Committee (SLMC). SLMC is an advisory committee appointed by Government to provide advice on the strategic management of Strangford Lough. It represents a wide range of interests and user groups on and around the Lough. Committee members are nominated from the following organisations: Ards Borough Council, Association of Strangford Yacht Clubs, Council for Nature Conservation and the Countryside, Down District Council, Joint Council of Wildfowling Associations for Strangford Lough, the National Trust, Northern Ireland Agricultural Producers Association, Northern Ireland Environment Link, Northern Ireland Federation of Sub-Aqua Clubs, Northern Ireland Fish Producers Organisation Ltd, Royal Society for the Protection of Birds, Royal Yachting Association, Shellfish Association of GB, Sports Council for Northern Ireland, Strangford Lough Nature Conservation Association, Strangford Lough Fishermen's Association, Ulster Farmers Union, Ulster Wildlife Trust. The Committee also includes Minister's nominees. Representatives from Environment & Heritage Service and the Department of Agriculture and Rural Development regularly attend meetings.

Firstly, SLMC would wish to thank the Committee for Agriculture and Rural Development for the opportunity to make a submission on these proposals.

SLMC's original comments made to DARD on 16 September 1999 when this amendment was first proposed, are attached for your information.

Please note that the Committee has only considered this Amendment in terms of how it might affect the management of the intertidal area as applied to Strangford Lough. Consideration of other aspects of the Amendment such as the trade in salmon roe and powers of the FCB are either outside the Committee's remit or have not been formally debated within the Committee.

1. Regulation of shellfish harvesting in the intertidal area is welcomed

SLMC welcomes the proposals under Section 1(2) to introduce measures to regulate shellfish harvesting in the intertidal zone. It believes that such regulation would help to create a sustainable development opportunity for the local area both in economic and environmental terms.

2. Powers for fisheries regulators to make regulations for environmental purposes are welcomed

SLMC welcomes the proposed Amendment to the Principal Act as indicated in Section 1(4) of the Fisheries (Amendment) Bill, which introduces powers for fisheries regulators to make regulations for environmental purposes as well as for the protection and management of fisheries. The Committee is therefore reassured that DARD's role in managing the fishery (in biological terms) and regulating to allow management (in operational terms) will be applied in such a way that it does not compromise environmental interests.

The Committee would draw attention to the Conservation Objectives under the Strangford Lough SAC Management Scheme which state, for example, that eelgrass (essential food for brent geese) must be maintained at its current extent. If the proposed intertidal fishery had the potential to damage eelgrass beds, then the Committee would seek clarification on whether or not DARD would introduce Regulatory Orders to operate the fishery in such a way that damage to eelgrass would have to be avoided.

The Committee also welcomes specific reference to archaeological interests in this section.

The Committee feels that the legislation should be worded so as to ensure that DARD's powers are extended to manage and regulate all means and methods of fishing.

The Committee notes that under Section 1(3) the Department will have powers to regulate fishing "from or by means of specified vehicles or equipment". SLMC would seek clarification that the legislation will be such that any or all kinds of harvesting might be regulated/banned on the grounds that it is not environmentally sustainable. This would most likely apply to mechanical harvesting but might also apply to hand collection, which may not be sustainable in Strangford Lough.

The Committee assumes that more specific references will be made to methods such as mechanical harvesting or hand raking, at a later stage under Regulatory Orders.

SLMC notes that it would be the responsibility of Environment and Heritage Service to detail what is required in terms of Environmental Impact Assessment for activities under this new fishery. The Committee would see reassurance that DARD could and would incorporate EIA requirements in the conditions of the licence. SLMC considers it essential to ensure that any activity is assessed in advance and monitored throughout its operation on the understanding that the activity may be restricted or banned if it is thought to compromise the conservation interests of the Lough.

The Committee would draw attention to Section 185a of the current 1966 Act with regard to Preservation of Amenity. The EC Habitats and Birds Directives were not in existence when the 1966 Act was introduced. Section 185a should be reworded to say that legislation to say that legislation should comply with the EC Directives.

The Committee would seek reassurance that staff in the Departments responsible have met to ensure that fisheries and environmental legislation dovetail.

The Committee would not wish to slow down the process of introducing the amendment, however, in view of their increasing importance the Committee has recommended that legislation to control hand collection, dive collection, and all commercial harvesting of seaweed is now essential whether as part of this Bill or as a subsequent Bill.

7. Seaweed cultivation

The Committee notes that cultivation of seaweed is not covered under this legislation. It is possible that this activity will be developed in Strangford Lough in the future. The Committee would draw attention to this omission and would suggest that if this is not covered in this amendment it will have to be considered in the future.

8. Compensation

Regarding the issue of compensation SLMC would seek clarification that DARD would not be required to pay compensation in the event that they had to stop or restrict collection at any time whether for economic and/or environmental reasons.

9. Status of this legislation in relation to common law rights and existing fisheries

The Committee would seek clarification as to how this legislation might be applied where there are established common law rights to harvest shellfish in the intertidal area, and or where a fishery is already in operation.

10. SLMC involvement in the development of Regulatory Orders

The Committee would request that it is fully involved in the development of Regulatory Orders arising from this Amendment.

i) Introduction to RSPB

The RSPB is Europe's largest wildlife conservation organisation. It campaigns for the conservation of birds and their habitats. Coastal and inter-tidal habitats are amongst the most important in Northern Ireland for birds. A number of inter-tidal areas (including Strangford Lough) are of international importance for their bird populations.

ii) RSPB and the Fisheries (Amendment) Bill

RSPB supports the introduction of the Fisheries (Amendment) Bill, which will facilitate the regulation of fisheries within inter-tidal areas. RSPB, along with other conservation organisers, has been pressing for the urgent introduction of such measures for over two years.

RSPB's main concern is the threat to internationally important bird populations from mechanised cockle harvesting, both at Strangford Lough and other areas. RSPB is also concerned at other damaging activities carried out in protected sites by third parties (non-owner/occupiers). RSPB has also been campaigning for further legislation to address this wider issue.

iii) The need for urgent measures

The Fisheries (Amendment) Bill will not itself prevent mechanised cockling at Strangford Lough (or elsewhere). This will be achieved by regulations introduced under the Bill. RSPB is concerned at the prospect of further delays and recommends that regulations should be drafted now.

iv) Possible amendments to the Fisheries (Amendment) Bill

RSPB has identified some possible minor amendments which would help to increase the effectiveness of the Bill.

1. INTRODUCTION TO THE RSPB

1.1 The Royal Society for the Protection of Birds (RSPB) is Europe's largest voluntary wildlife conservation organisation with a membership of over 1 million. Of these nearly 10,000 live in Northern Ireland. The RSPB manages one of the largest conservation estates in the UK - over 140 nature reserves, of which 8 are in Northern Ireland. These nature reserves include important inter-tidal areas at Lough Foyle, Belfast Lough and Strangford Lough.

1.2 In encouraging the conservation of wild birds and their habitats, the RSPB takes an interest in a range of environmental and land-use issues and employs specialist staff to advise on such matters. The RSPB actively campaigns on conservation issues and provides advice to key decision-makers. The RSPB will, when necessary, promote changes to national and EU legislation.

2.1 RSPB strongly supports the introduction of the Fisheries (Amendment) Bill, since it will facilitate the regulation of fisheries within inter-tidal areas.

2.2 RSPB has strongly advocated the introduction of new legislation for this purpose for over two years. This is because in November 1997 the Belfast High Court ruled that there was a common law right for people to harvest shellfish in the inter-tidal areas of Strangford Lough. RSPB and a number of other conservation organisations recognised the implications of this decision for coastal sites around Northern Ireland, and called for new legislation to address the issue.

2.3 These concerns were justified when, in September 1999, mechanised harvesting of cockles (using a tractor dredger) began on Strangford Lough. The use of tractor dredgers to harvest cockles is very damaging to the environment. RSPB's main concern was the impact on the internationally important bird populations of Strangford Lough.

2.4 The main impacts of mechanical cockle harvesting on bird populations are:

• Depletion of cockle stocks - cockles are an important food source for waders such as oystercatchers.
• Disturbance to feeding birds
• Destruction of eelgrass beds - eelgrass or Zostera is the main food for pale-bellied brent geese.

2.5 This activity is one of many potentially damaging activities carried out by third parties (non owners or occupiers) on protected sites. Existing legislation cannot prevent damage or disturbance to Areas of Special Scientific Interest (ASSIs) or Special Protection Areas (SPAs)/Special Areas of Conservation (SACs) by third parties. This is in contravention of Article 6(2) of the EU Habitats Directive which requires that disturbance and deterioration of these sites should be prevented. While the Fisheries (Amendment) Bill will help to resolve one type of damaging activity, further legislation is required to address the wider issue. RSPB has been lobbying separately on this issue.

3. THE NEED FOR URGENT MEASURES

3.1 The inter-tidal area of Strangford Lough has already been damaged by dredging, and there is still a threat that more areas (both in Strangford and elsewhere) could be affected. It is therefore, important that legislation is passed without delay to allow for the regulation of this activity.

3.2 The Fisheries (Amendment) Bill will not itself protect Strangford (or other sites) from mechanised cockling. Instead this will be achieved by regulations which will be introduced under the Bill's provisions. RSPB is concerned, therefore, that the required legal protection is still many months away. In order to speed up this process as much as possible, RSPB recommends that draft regulations should be prepared now so that they can be adopted immediately following the passage of the Bill.

• The Fisheries (Amendment) Bill should be introduced without delay
• It is recommended that draft regulations should be prepared now, so that they can be adopted immediately following the passing of the Fisheries (Amendment) Bill

4. POSSIBLE AMENDMENTS TO THE FISHERIES (AMENDMENT) BILL

4.1 RSPB believes that the following minor amendments would help to increase the effectiveness of the Bill.

4.2 Clause 2(1)

Clause 2(1) could be amended as follows:

"1(A) Any authorised person to whom this section applies may, for the purpose of enforcing regulations made under section 124, do all or any of the following things with respect to any vehicle which is or has been or is suspected to have been employed in fishing."

This amendment would help to achieve consistency with Clause 2(1)(e)(i)

4.3 Clause 2(1)(b) and (c)

The following amendments are suggested:

(c) in relation to any vehicle, examine

(i) any fish in or on the vehicle or collected by the vehicle:"

These amendments should be included to widen the scope of the powers of the authorised person.

4.4 RSPB raised a number of other issues relating to the provisions of the Bill with the Department and is currently awaiting a response to these. Details can be found in our letter to the Department of 12^th September 2000.

(RSPB letter to Department of Agriculture and Rural Development)

12 September 2000

Thank you for sending us a copy of the Fisheries (Amendment) Bill and explanatory memorandum. We understand that the Bill will be debated by the NI Assembly over the coming weeks and would like to take this opportunity to make some comments on the provisions of the Bill.

RSPB supports the introduction of this Bill since it will facilitate the regulation of fisheries in the inter-tidal zone.

However RSPB has the following concerns:

1.

Whilst the Bill addresses the specific concerns that we have raised over the last two years in relation to the damaging effect of mechanised cockling at Strangford Lough, it fails to remedy the issue which is the prime cause of the problems at Strangford Lough and which continues to threaten all SPAs and SACs throughout Northern Ireland. This crucial issue is the inadequate implementation in Northern Ireland of Article 6(2) of the Habitats Directive, to prevent disturbance and deterioration of SPAs and SACs through the activities of non owners/occupiers. We will continue to make representations on this matter to the appropriate Ministers.

2.

The Bill itself will not protect Strangford Lough form mechanised cockling activities. Instead this will be achieved by regulations to be brought in under the Bill. Therefore legal protection of Strangford Lough is still many months away. In order to speed up this process as much as possible RSPB suggests that draft regulations are prepared now so that they can be adopted immediately following the passing of the Bill.

3.

In relation to this Bill, we recommend a few amendments to the text which would increase the effectiveness of the legislation. These are:

3.1.

Clause 2(1)

This should be amended as follows:

This amendment is required to achieve consistency with Clause 2(1)(e)(i).

3.2.

Clause 2(1)(b) and (c)

The following amendments are recommended:

(b) "require the attendance of the person in charge of, and any other persons in or on or using, the vehicle or equipment and require all such persons to do anything which appears to him to be necessary for facilitating the performance of his functions:

(c) in relation to any vehicle, examine

(i) any fish in or on the vehicle or collected by the vehicle:"

These amendments should be included to widen the scope of the powers of the authorised person.

3.3.

Clause 5

3.3.1.

Section 25 of the Fisheries Act (NI) 1966 makes clear that the Fisheries Conservancy Board has function in relation to both salmon and inland fisheries. Clause 5 of the Bill inserts section 26(3) into the Fisheries Act (NI) 1966. Under section 26(3) the Fisheries Conservancy Board has the power to make byelaws, for the purposes in 26(3)(a) and (b), 'in relation to the regulation of fishing for salmon'. However, there is no byelaw power given in relation to the regulation of fishing of inland fisheries of Northern Ireland. We would ask why DARD has not taken this opportunity to make provisions for inland fisheries byelaws?

3.3.2.

Such a power already exists in GB. Section 103(3) of the Environment Act 1995 (which inserts paragraph 6A into Schedule 25 of the Water Resources Act 1991) allows byelaws to be made for the conservation and enhancement of aquatic and waterside areas and flora and fauna dependent on these areas in relation to not only salmon fisheries, but also trout fisheries, freshwater fisheries and eel fisheries.

3.4.

Sections 102 and 103 of the Environment Act 1995

The provisions of both clause 1 and 5 are similar to those contained in sections 102 and 103 of the Environment Act 1995. However, they also contain an additional provision, which is absent from this Bill. In this context the provisions would read:

For Clause 1

For Clause 5

These provisions seem to ensure that the original purpose of section 124(1) and (2) of the principal Act is maintained and not diminished by section 124(2A). We would seek clarification as to why this provision has not been included here.

16 October 2000

As requested by Ian Paisley Jnr at our recent evidence session relating to the Fisheries (Amendment) Bill, I enclose a copy of the Department of Agriculture and Rural Development's letter to RSPB regarding our suggested amendments to this proposed legislation.

I would be obliged if you could pass on a copy of this letter to the Committee when appropriate. I will forward any RSPB response to this letter as and when one becomes available.

I hope the Committee finds this helpful.

Yours sincerely

Neil C Johnston
Assembly Liaison Officer

Email address: neil.johnston@rspb.org.uk

I refer to your letter of 12 September 2000 in which you raised a number of points regarding the above Bill.

I will deal with these in the order in which they appeared in your letter.

The Bill proposes to provide the Department with the power to regulate fishing activity in or on the foreshore and provides for the exercise of regulatory powers for environmental purposes. It does not propose to regulate other activities that may be damaging to the environment. Responsibility for regulating non-fishing activities lies with other appropriate authorities.

Draft regulations aimed at controlling the commercial collection of wild shellfish from the foreshore of Strangford Lough have been prepared and will be used for consultation as soon as the relevant enabling powers have been conferred upon the Department.

The Department has considered the RSPB's proposal to amend clause 2(1) of the Bill to provide authorised officers with powers in respect of a vehicle or equipment which is suspected to have been employed in fishing. However the Department would resist this amendment in the Bill as it would increase the powers of authorised officers in respect of vehicles and equipment beyond the powers currently available to authorised officers in respect of boats in section 174(1) of the Act. To do this would be going beyond the scope of the Bill and may also leave the Department vulnerable in respect of the inconsistency with sub-section 174(1), as the interpretation may be taken that the Department had deliberately excluded grounds of suspicion from sub-section 174(1).

The Department will consider the matter further when the Fisheries Act (NI) 1966 is being reviewed in full, however a distinction must be made between having a suspicion that a vehicle or equipment was engaged in fishing (which is not illegal) and having a suspicion that a vehicle or equipment which is or had been involved in fishing was contravening a regulation made under section 124 of the Act (which is illegal).

The Department has considered the RSPB's proposal to amend clause 2(1)(b) of the Bill to empower an authorised person to require the attendance of a person who is using a vehicle or equipment. The Department is content to include this amendment.

The Department has considered the RSPB's proposal to empower an authorised officer to examine any fish collected by the vehicle. The Bill proposes to provide authorised officers with powers to examine any fish in or on any vehicle or equipment. This amendment is considered necessary as the vehicle and equipment are considered private property and a specific power is required to allow the examination of fish on private property. Any fish collected by the vehicle or equipment but not in or on the vehicle or equipment would be liable to examination by authorised officers under the general powers of search. Therefore the Department does not consider a specific power to examine fish not in or on the vehicle to be required in the Bill. Note that the power to seize fish applies to any fish in respect of which an offence has been committed and is not limited to fish in or on the vehicle or equipment.

The Department has also considered the RSPB's proposal to include a further provision in section 124 (2A) equivalent to that contained in the Environment Act 1995. The purpose of section 124(2A) is to enable the Department to regulate sea fisheries for the purposes of conserving the marine or coastal environment or flora or fauna dependent on a marine or coastal environment. The powers provided for in sub-section (2A) can therefore only be applied in respect of regulations made under section 124(1) and (2). The Department is content that original purpose of section 124(1) and (2) is maintained and not diminished by section 124(2A) and therefore considers that the amendment proposed by RSPB is not required.

The amendments proposed by the RSPB in respect of the other clauses in the Bill are the responsibility of the Department of Culture, Arts and Leisure (DCAL) to whom I have forwarded a copy of your letter. DCAL intends responding separately to your comments in respect of these clauses.

28 September 2000

The National Trust, which manages large areas of the foreshore of Strangford Lough and which has consistently pressed for this legislation to be introduced, has only just been informed of the meeting of the Committee. It therefore submits the preliminary observations with the intention to submit further comments as soon as possible.

1. The National Trust has run its Strangford Lough Wildlife Scheme since 1966; under the Wildlife Scheme the Trust actively manages over 4,000 ha of foreshore. Management includes protection of the foreshore against encroachments and against activities likely to affect adversely the well-being of the plant and animal communities found in or on the foreshore.

2. The Trust had for many years prior to 1998 been attempting, by means of its Byelaws, to regulate the harvesting of shellfish, such as cockles, whelks and winkles, where such harvesting appeared to be excessive. However, in 1997 the High Court ruled that the public had a common law right to collect shellfish from the foreshore and that this right is unaffected by National Trust Byelaws. Following the ruling, shellfish harvesting continued unrestricted and the introduction of a mechanical harvester in 1998 and 1999 hugely increased the scale of exploitation. More recently, harvesting has decreased owing to unfavourable market conditions.

3. Because of the conservation importance of Strangford Lough, and the responsibility of the government to comply with the EC Habitat Directive governing such areas, the Trust, along with other conservation organisations, has since 1997 been pressing the government to introduce legislation to regulate the harvesting of shellfish from the foreshore.

4. We have sought legal advice as to whether the proposed amendments, as drafted, achieve this. Although we have received only preliminary advice on this matter, as we only discovered (by accident) on the 27^th September 2000 that the Committee was meeting on the 29^th September, we have not had time to properly discuss that advice and intend, when we have done so, to make a further submission to the Committee. The following observations are of necessity preliminary.

5. We were advised that proposed S.124(I)(dd) gives the Department sufficiently wide powers to achieve, through regulations which can be made, the objective stated in (3) above. However, the efficacy of the legislation will not be clear until the actual Regulations are made available for consultation.

6. We welcome the intention to prohibit the use of vehicles for fishing. We would suggest however that the regulations should cover all aspects of shellfish harvesting (particularly where it is carried out commercially) where this appears to be necessary for the reasons given in subsection (2A)(a) & (b). If the Regulations can be readily altered to meet changing circumstances then it may be less necessary to try to make them comprehensive now. We would welcome further information concerning the proposed Regulations.

October 2000

Following our conversation I am forwarding some comments from our solicitors who have been advising the Trust on the Fisheries [Amendment] Bill. You indicated that these comments could be submitted as additional evidence and as part of the Trust's submissions to the Fisheries Committee to date.

Further consideration has been given as to whether the proposed section 124(i)(dd) would allow the department to make regulations to control hand picking. This is on the basis that the amendment bill gives the Department a general power to make Regulations and then provides a number of examples of particular situations where this may be used.

From consideration of the text by Francis Bennion, the main textbook on statutory interpretation, it provides where an Act includes an example of its operation, that this is to be treated as a detailed indication of how Parliament intended the enactment to operate. In practice this is to aid a judge in understanding the Statute by taking specific instances which are intended to be covered by it. It does not in principle limit the general words although certainly if all the examples were of a particular type of control, an inference may be drawn that this is the type of control envisaged.

Accordingly, the National Trust would submit that if it were possible for an additional example to be included specifying hand picking, that this would be preferable as it would remove an element of doubt that may be there, whether the regulations are intended to deal also with hand picking [where this is likely to have adverse environmental effects.]

I hope this is helpful, if you require any further clarification please do not hesitate to get in touch.

3 October 2000

Further to the meeting with the Agriculture Committee on Friday 29 September I would submit the following comments:

1. Regulations made under the Fisheries Act (NI) 1966 are subject to negative resolution procedures - Section 19, copy attached, refers. This procedure was adopted because of the vast number of regulations which may be made under the Act, and because none of the regulatory powers relate to powers to amend the Act nor do they deal with financial matters. Since 1998 - 2000 (to date) the Department has made 8 sets of regulations under the Fisheries Act (NI) 1966 covering a range of subjects such as the conservation of scallops, licence duties and the prohibition of fishing for razor shells.

2. While the Committee could propose that the regulatory powers proposed by the Bill should be exercised by affirmative resolution, this would involve amending Section 19 of the Fisheries Act, and may be interpreted as affording such regulations a higher status than other regulations made under the Act. While OFM/DFM would be in a better position to advise on the consequences of a more general tendency to make sub-ordinate legislation by affirmative resolution, and the Executive Committee would wish to be involved in any such decision I'm sure it is appreciated that only a small proportion on sub-ordinate legislation could be handled by the Assembly given the other demands on their time.

3. A preliminary draft of the regulations to prohibit mechanised harvesting of shellfish from Strangford Lough has been prepared. Advice from Machinery of Government Division is that consultation cannot take place until the relevant primary powers have been conferred. To do so before the Fisheries Bill passes through all its Assembly stages would risk pre-empting the Assembly's decision on the final content of the Bill. The Department is making arrangements to amend the coming into operation of the provisions contained in the Bill so that they come into operation as soon as Royal Assent is received. It is estimated that the regulations will progress through the various stages and be read to come into operation some 9-10 weeks after the Bill received Royal Assent. Ideally the regulations should come into operation before the summer when mechanised harvesting is more likely to occur.

4. The Department is still considering in conjunction with the Office of Legislative Counsel the need to include a definition of the inter-tidal area as detailed in the chart handed to Committee members last Friday. I will update you when the need to define or not has been established.

5. On advice from the Assistant Committee Clerk I have not yet copied the Fisheries Act (NI) 1966 in full as requested by the Committee last Friday. I understand they have received copies on the sections to which the amendments proposed by the Fisheries Bill relate. If however the Committee are still of a mind to receive copies of the full Act I will arrange. Perhaps you would advise.

I hope the Committee finds this additional information useful.

11 October 2000

Following its meeting on 6 October the Committee for Agriculture and Rural Development is seeking clarification on a number of issues relating to the Fisheries (Amendment) Bill.

1. Is dive collection covered under this bill?

2. The references to the conservation or enhancement of the natural beauty or amenity of marine and coastal areas, geological, physiographical, archaeological and historic features appears to be a "catch-all" approach to regulation. What is the Department's objective for this insertion and what does the inclusion of these areas in the Bill actually mean in practice?

3. This subsection also refers to the conservation of "flora and fauna which are dependent on, or associated with, a marine or coastal environment." Why is it necessary to include flora in regulations that aim to prohibit shellfish collection? Does it relate to any effect a fishing activity has on flora or fauna which could leave to damage or harm? If so, should this be more clearly prescribed?

4. Is the collection of seaweed (ie flora) having an adverse effect on the environment in Strangford or elsewhere? If so, can or should this be regulated?

5. The Department is also seeking powers to regulate sea fisheries for environmental purposes. What does the Department define as 'environmental purposes', eg a pollution incident, a decline in fish stocks? The wording in the Bill is so wide as to allow virtually any definition. What is the Department's objective for this sub-section and can it be more clearly prescribed?

6. The members perceived, from what you said about the amendment being used to deal with fishing activities only if they were causing detriment to the marine or coastal environment, that Regulations could be applied to the fishing fleet. Is such a wide power really necessary, and if so why?

7. Members asked whether fishermen would be compensated if such regulations were implemented. Your answer on 29 September was specifically in relation to shellfish harvesting. Can you confirm DARD's policy in more general terms (ie would any curtailment of fishing activity under this Bill be the subject of compensation)?

8. The Committee was concerned by the rigidity of the advice that you had received from Machinery of Government Division (regarding the Committee having sight of Rules prior to the primary legislation being adopted). While accepting that it might not be possible to have sight of the draft Regulations, members are aware that information about the proposed content of sub-ordinate legislation is given to Westminster Committees and ask whether they could be given similar information.

9. The Chairman has asked for the Department's view on whether it would be appropriate for the Fisheries Act 1966 to be amended by this Bill to ensure that sub-ordinate legislation would be passed by affirmative resolution.

10. The Committee has asked for confirmation that the Department will bring all the proposed Regulations to be made under this Bill before the Committee under the pre-drafting consultation arrangements. Can you provide this assurance?

As I think you are aware, the Committee seeks a further meeting with you and your colleagues on Friday 20 October at 10.00 am in Room 135 Parliament Buildings at which time members hope to begin clause by clause consideration. It would be most helpful to have received your response to the above points in time for distribution to members on Tuesday 17 October. If this is not possible please let me know.

Yours sincerely

1. The Department already has powers under the Fisheries Act (NI) 1966 to regulate dive collection. These powers are contained in Sections 19(1) and 124 (1) & (2), under which the Conservation of Scallops Regulations (NI) 1997 were made. These regulations prohibit diving for scallops during the period 1 June to 31 October in any year.

2. This amendment reflects the requirements placed on the Department by the EC Habitats Directive and mirrors the wording used in the GB Environment Act 1995, which we are seeking to parallel. Our objective is to ensure the implementation of the obligations under the EC Habitats Directive is reflected properly and fully in domestic legislation. The power to regulate for environmental purposes, along with the extension of powers to include the foreshore in the area in which the Department may regulate, are both required to enable the Department to make regulations for the environmental purpose of controlling (banning) the mechanical harvesting of wild shellfish from the foreshore.

3. Flora and fauna are included here because the mechanical harvesting of shellfish from the foreshore may involve damage to eelgrass beds on which overwintering waterfowl (Brent geese in particular) are dependent. The Department, bearing in mind its obligations under the Habitats Directive, requires powers to regulate a fishing activity (mechanical harvesting) which would have a detrimental impact on the supply of feeding (flora - eel grass and fauna - cockles) for the wildlife that inhabits the foreshore. While the proposed amendment to the primary power seems wide, the actual regulations will specifically relate to fishing by means of mechanical harvester. Should a situation arise where another type of fishing activity (for example intensive harvesting by spade) was causing environmental damage then we would have the power in the primary, through the inclusion of the word equipment in the proposed amendment, to act more quickly in bringing in subordinate legislation to regulate that activity.

4. The collection of seaweed is not covered by the powers contained in the Fisheries Act (NI) 1966. Section 124 of the 1966 Act gives the Department powers to make regulations . for the management, conservation, protection, improvement or increase of sea fisheries (the proposed amendment will add the foreshore), and sea fisheries is defined as any fishery, other than a salmon fishery, in the sea or an estuary (the proposed amendment will add the foreshore). We are not aware of the collection of seaweed causing any adverse effect on the environment in Strangford Lough or indeed elsewhere. The inclusion of seaweed in the definition of fishing activity which the Department could regulate via an amendment in this Bill would go beyond the scope of the Bill, as it would mean that we could license seaweed operations etc. The Department will look again at the inclusion of seaweed as a fishing activity when reviewing the 1966 Act.

5. The type of environmental purpose the Department seeks powers to regulate is the protection of feeding sources for overwintering waterfowl. The fishing activity (mechanical harvesting of cockles) was causing a detriment to the supply of cockles and eel grass, both of which are required to support the bird population. The amendment would not cover control of a pollution incident, unless the pollution was caused by a fishing activity. Pollution incidents are already regulated under the Food & Environmental Protection Act 1985. The Department already has the power to regulate in the case of a decline in fish stocks - this would fall under the conservation arm of section 124, and indeed has been used in the past as the power to, for example, operate the cod recovery plan, or to introduce catch quotas, minimum landing sizes or mesh sizes. Such measures are taken in co-operation with the industry, which supports the Department's efforts to ensure sustainability for the industry in terms of the supply of stock. While the power seems wide the Committee should bear in mind that the environmental purposes must be linked to a fishing activity.

6. While we could not rule out completely the application of this amendment to the fishing fleet we feel that this is very unlikely to happen. Certainly there is little we contemplate at present, other than, for example, if a new area of particularly sensitive habitat was discovered and had to be protected from potential damage by the fishing fleet. However such new habitat is rarely discovered, and in any case the Department would be very conscious of taking a balanced view of the need to regulate set against minimizing any impact on the earning capacity of the fleet, in keeping with the Department's aim to support the industry. However introduction of the proposed amendment as worded is in line with our obligations under the EC Habitats Directive.

7. While it is not general policy to compensate for curtailment of activity for environmental purposes, any decision would have to depend on the particular circumstances of the regulation imposed.

8. I have already advised the Committee in evidence that the proposed regulations will prohibit the mechanical harvesting of cockles from Strangford Lough. They really will not do anything else. In this instance the Department will be happy to provide the Committee with a copy of the draft regulations should they wish to see them before they are made. I will ask the Head of Sea Fisheries Branch to arrange this.

9. My letter of 3 October to you covers views on amending the 1966 Act to ensure regulations are subject to Affirmative Resolution. I have indicated the volume of regulations progressed under the 1966 Act, and that a move to make these regulations by affirmative resolution would give them greater status than other regulations made under the 1966 Act. It would be worthwhile if the Committee could seek a view from the wider Department (ie beyond Fisheries Division) of any general move to Affirmative Resolution procedures, given the potential effect such a move may have on the Department's ability to respond to a need to regulate.

10. I can assure the Committee that the Department will bring the proposed content of all regulations to be made under this Bill before the Committee under the pre-drafting consultation arrangements and in line with the central procedural guidance issued.

Finally in relation to the ownership of the foreshore, based on details provided by the Crown Estate Commission I can now advise the Committee that approximately 80% of the foreshore in Northern Ireland is under ownership of the Crown Estate. The figure for Strangford Lough is approximately 55%. Of this there are three major Crown Estate leases, to the National Trust, the Department of the Environment and Ards Borough Council. There are also a number of smaller leases. The National Trust owns most of the remaining 45%.

I hope the Committee finds this input helpful

My colleague Hilda Hagan in her letter to you dated 17 October indicated that I would write separately to let the Committee have sight of the draft Regulations to be made under Section 124 of the Fisheries (Northern Ireland) Act 1966 as amended to reassure the Committee on their proposed content.

I therefore enclose an early draft of the proposed Regulations which will seek to regulate the collection of shellfish from Northern Ireland inshore waters of Strangford Lough. I would draw the Committee's attention to 2 points:

1. "Northern Ireland inshore waters" is now as defined on the face of the Bill; and

2. the Department is still striving to define a "mechanical vehicle" in this context.

I hope the Committee finds this input helpful and if the Committee wishes I am happy to discuss the above issue with them.

Yours sincerely

1. These Regulations may be cited as the Strangford Lough (Shellfish Prohibition) Regulations (Northern Ireland) 2000 and shall come into force on 2000.

2. In this Order -

"Strangford Lough" means the sea area to the north west of an imaginary straight line drawn from Kilard Point to Ballyquinton Point, Co Down;

"the Act" means the Fisheries Act (Northern Ireland) 1966;

"mechanical vehicle" means .........

3. Fishing for or taking shellfish from the Northern Ireland inshore waters of Strangford Lough by means of any mechanical vehicle, is prohibited.

4. The prohibition contained in these Regulations shall not apply to any person who is operating from a fishing boat or who is operating under the authority of a fish culture licence granted under Section 11 or a permit granted under Section 14 (3) of the Act.

27 October 2000

As regards the Fisheries (Amendment) Bill, introduced in the Assembly on 26 June 2000, we do have some reservations.

The potential issue for us arises at clause 2(1), which inserts a new sub-section 1A into section 174 of the Fisheries Act (NI) 1966, thereby extending the powers available to authorised persons in relation to the boarding and examination of vehicles and equipment which are or have been employed in fishing. The element of "reasonable suspicion" is not required until clause 2(1)(e), which empowers the seizure of any vehicle or equipment which may have been used in the commission of a relevant offence. No judicial authorisation is required for the seizure of such property. An authorised person may enter the vehicle and examine any fish, equipment or document found thereon without need for reasonable suspicion or any form of warrant or judicial authorisation.

Prima facie, the provisions interfere with the right to a private life and home under Article 8 of the European Convention on Human Rights, and also with the right to peaceful enjoyment of property under Article 1 of Protocol 1. We are not sure to what extent the European Court of Human Rights would consider a boat to fall within the category of "home", but in Niemetz v Germany (1993), the Court was prepared to consider that respect for home can include some places of work.

The European Court has also found that the purpose of most searches is to prevent crime and/or to protect the rights of others, both permitted aims under Article 8(2). The questions then are: is the search in accordance with the law and is it necessary in a democratic society? The key question is whether or not there are adequate and effective safeguards against abuse and in this regard judicial authorisation is a highly relevant factor, although not determinative. In Camerzind v Switzerland, (1997) at para 45, the Court found that, where there had been no judicial authorisation for a search, the Court would be "particularly vigilant" to ensure that other safeguards existed to protect the person from unnecessary intrusions into his or her privacy. The Court will also consider the extent of the limits on the search powers. In Funke v France (1993) 16 EHRR 297 the European Court found that the powers vested in the French customs authorities were too wide to be compatible with Article 8.

In Camerzind, however, the Court came to a different conclusion on the basis of a number of factors, including:

(a) that the search in question could be carried out only by specially trained officials,

(b) that before the search could be carried out the investigating officer had to produce evidence of his or her identity and explain the purpose of the search, and

(c) that a search record had to be produced.

We have looked at the Fisheries (NI) Act 1966 and are not impressed by the nature of the procedural safeguards contained there:

• entry, search and seizure can be carried out (section 166) by an authorised person, namely, a member of the RUC, an officer appointed by the Board or by the Ministry or by a private water bailiff;
• the production by an officer of the Board or a private water bailiff of the instrument of their appointment is sufficient authority for exercising their warrant under Part XI of the Act; however the production of the instrument is not necessary unless they are required to produce it (section 171);
• there is a degree of protection for property rights in section 181(6)(b) as regards the procedure for disposal of seized fish in so far as, where an individual is acquitted and the fish seized are suitable for sale, the acquitted person should receive a sum equal in amount to the net proceeds of the sale;
• there appears to be no requirement that a search record be kept;
• section 172(2) makes it clear that there is no general power for authorised persons to enter any enclosed garden or dwelling house; this can be done only under section 173 where a Justice of the Peace grants a warrant in response to a sworn complaint in writing on the basis of reasonable suspicion that a relevant offence has been committed in such a place.

We note that in the Terrorism Act 2000 there are better safeguards regarding powers to enter and search premises, eg under section 42, for a search of premises, a Justice of the Peace must issue a search warrant on grounds of reasonable suspicion, and under section 25 cash seized must be released within 48 hours unless an order is obtained from a magistrates' court.

All in all, we conclude that clause 2(1) of the Fisheries (Amendment) Bill may well breach Article 8 and Article 1 of Protocol 1 of the European Convention.

I hope that these few remarks are helpful.

Yours sincerely

Further to Executive Committee endorsement of the amendments my Department proposes to the above Bill, I am writing to confirm the following:

Amendments proposed by the Department:-

• Delete reference to the term "foreshore" in Clauses 1 and 2, substituting the term "Northern Ireland inshore waters", with the latter term defined, to ensure that any regulations made under the power contained in the Bill will apply to all of the area between the sea and high water mean median tide;
• Delete subsections (2) and (3) of Clause 9, so that the Bill comes into operation when it is made, rather than by Appointed Day Order;
• Insert "or using" after "on" in Clause 2 page 2 line 13. This reflects the amendment proposed by the RSPB, so that authorised officers may require the attendance of persons in or on or using vehicles or equipment to assist him in carrying out his enforcement duties.

The paper attached details the specific amendments proposed.

Further, I wish to advise the Committee that the further submission from the RSPB in relation to a proposed amendment to Clause 2(1) of the Bill, to provide authorised officers with powers in respect of a vehicle or equipment which is suspected of being employed in fishing, has been considered. However I do not propose to accept this amendment, as I do not consider that authorised officers should in this regard act on suspicion - they should have hard evidence that the vehicle or equipment is actually involved in fishing before seeking to determine whether, in so doing, any regulations made by the Department were being contravened. Additionally the proposed amendment would increase the powers of authorised officers in respect of vehicles and equipment beyond the powers currently available in respect of boats (section 174(1) of the Fisheries Act (NI) 1966 refers).

I hope this information enables the Committee to finalise consideration of the Bill.

1. Clause 1, page 1, line 4, leave out "or on the foreshore" and insert

"Northern Ireland inshore waters".

2. Clause 1, page 2, line 2, at end insert -

"(5) For the purpose of this section -

(a) "Northern Ireland inshore waters" means the area adjacent to the coast of Northern Ireland and to the landward of a limit of 6 miles from the baseline from which the breadth of the territorial sea is measured, up to the mean high-water mark of ordinary spring tides; and

(b) "sea-fisheries" includes any fishery within that area".

3. Clause 2, page 2, line 13, after "on" insert "or using".

4. Clause 2, page 3, line 3, leave out subsection (5).

5. Clause 9, page 4, line 31, leave out subsection (2) and (3).

Department of Culture, Arts and Leisure 129
Minister, Mr Michael McGimpsey
Ms H Campbell
Mr G ONeill
Ms K Simpson

Ulster Angling Federation 137
Mr N McCreight
Mr P Erwin

Department of Rural Development - Water Service Agency 139
Mr H Thompson
Dr B Storey

Department of Agriculture and Rural Development - Rivers Agency 143

Mr M Hamilton
Mr J Allister

Evidence taken on 22 November 147

In attendance
Mr P Johnston - Legal Adviser
Ms I McAuley - Legal Adviser

Evidence taken on 4 December 159

Ms I McAuley - Legal Adviser

Annex A: Submission from the Ulster Farmers' Union (Fish Farming Committee) 167

Annex B: Submission from the Ulster Farmers' Union Legislation and Commercial Committee 169

Annex C: Submission from the Department of Agriculture and Rural Development - Rivers Agency 171

Annex D: Submission from the Ulster Angling Federation 173

Annex E: Ulster Angling Federation response on EC Directive 92/43/EEC
- Conservation of Natural Habitats 175

Annex F: Letter from the Department of Culture, Arts and Leisure re Fish Culture Licences 177

Annex G: Letter from the Department of Culture, Arts and Leisure re Exemption Permits
issued under Sections 58 and 59 of the Fisheries Act (NI) 1966 179

Annex H: Correspondence from Departmental Solicitors Office 181

Apologies: Mrs M Nelis
Mr D Hilditch

In attendance: Mrs C White
Mrs L Gregg
Ms M Higgins
Mr J McCourt

Witnesses: Mr W Mayne - Ulster Farmers' Union
Mr W Aston - Ulster Farmers' Union
Mr B Johnston - Ulster Farmers' Union
Mr W Baird - Ulster Farmers' Union
Mr M McGimpsey - Minister for Culture, Arts and Leisure
Ms H Campbell - Department of Culture, Arts and Leisure
Mr M McCaughan - Department of Culture, Arts and Leisure
Mr G ONeill - Department of Culture, Arts and Leisure
Ms K Simpson - Fisheries Conservancy Board Mr N McCreight - Ulster Angling Federation
Mr P Erwin - Ulster Angling Federation

The Ulster Farmers' Union gave evidence, in public, to the Committee on the Fisheries (Amendment) Bill.

Mr M McGimpsey, Minister for Culture, Arts and Leisure and his Department's Officials gave oral evidence, in public, to the Committee on the Fisheries (Amendment) Bill.

The Ulster Angling Federation gave oral evidence, in public, to the Committee on the Fisheries (Amendment) Bill.

[EXTRACT]

Apologies: Mrs M Nelis
Mr E McMenamin
Mr I Davis
Mr B McElduff

In attendance: Mrs C White
Mrs L Gregg
Ms M Higgins
Mr J McCourt

Witnesses: Mr H Thompson - DRD Water Service Agency
Dr B Storey - DRD Water Service Agency
Mr M Hamilton - DARD Rivers Agency
Mr J Allister - DARD Rivers Agency

The Water Service Agency gave oral evidence, in public, to the Committee on the Fisheries (Amendment) Bill.

The Rivers Agency gave oral evidence, in public, to the Committee on the Fisheries (Amendment) Bill.

[EXTRACT]

Apologies: Dr I Adamson
Mr B McElduff

In attendance: Mrs C White, Mrs L Gregg
Mr J McCourt, Ms M Higgins
Mr P Johnston, Ms I McAuley (Assembley Legal Advisers)

1. Fisheries (Amendment) Bill

1.1. The Committee discussed and resolved all concerns that had been raised pertaining to Clauses 3,4,5,6,7 and 8 of the Fisheries (Amendment) Bill (NIA Bill 9/99) taking the advice and opinion of the Assembly's Legal Advisers. Clauses 1,2 and 9 are being considered separately by the Committee for Agriculture and Rural Development.

1.2. The Committee carried out a detailed clause by clause scrutiny of those clauses which come within the remit of the Committee ie. Clauses 3,4,5,6,7 and 8 of the Fisheries (Amendment) Bill (NIA Bill 9/99). The clauses were read along with the related commentary in the Explanatory and Financial Memorandum.

Clause 3 subsection (4) was considered.

Agreed - Clause 3 subsection (4).

Clause 3 subsections (5),(6),(7),(8) and (9) were considered.

Agreed - subsections (5),(6),(7),(8) and (9).

Agreed - that Clause 3 should stand part of the Bill.

Clause 4 was considered. Agreed - that Clause 4 should stand part of the Bill.

Clause 5 paragraph (a) was considered.

Agreed - Clause 5 paragraph (a).

Clause 5 paragraph (b) was considered.

Agreed - Clause 5 paragraph (b).

Agreed - that Clause 5 should stand part of the Bill.

Clause 6 was considered. Agreed - that Clause 6 should stand part of the Bill.

Clause 7 was considered. Agreed - that Clause 7 should stand part of the Bill.

Clause 8 was considered. Agreed - that Clause 8 should stand part of the Bill.

1.3. The Committee discussed and agreed a final form of the Culture, Arts and Leisure Committee response on Clauses 3,4,5,6,7 and 8 of the Fisheries (Amendment) Bill (NIA Bill 9/99), each paragraph was agreed in turn.

Agreed - that the full Committee Report including the response from the Committee for Agriculture and Rural Development on Clauses 1,2 and 9 would be printed on receipt of the Agriculture and Rural Development response.

[EXTRACT]

In attendance: Mrs C White, Mrs L Gregg
Mr J McCourt, Ms M Higgins
Ms I McAuley (Assembly Legal Adviser)

1. Fisheries (Amendment) Bill

1.1. The Committee discussed all concerns that had been raised pertaining to the effect of Section 208 of the Fisheries Act 1966 on Clause 3, subsection 5, of the Fisheries (Amendment) Bill (NIA Bill 9/99) taking the advice and opinion of the Assembly's Legal Adviser.

1.2 The Committee agreed to amend Section 208 of the Fisheries Act 1966 as follows:

Clause 3, page 3, line 36 at the end insert -

(2) Section 208 of the principal Act be amended as follows -

'Nothing in this Act other than Section 48 shall prejudice the right of any owner to take materials from any stream.'

2. Date of next meeting

2.1. The next meeting of the Committee will take place on Thursday 7 December at 10:15am in Room 135.

Mr B Johnston )
Mr W Baird ) Ulster Farmers'
M W Aston ) Union
Mr W Mayne )

1.

The Chairperson: Good morning, gentlemen. You are all very welcome. Please give a short presentation on the issues that concern you, then members will ask questions related to your submission on the legislation. We hope that will get all the information we need out into the open.

2.

Mr Mayne: Thank you for today's invitation. As a farmer and chairman of the UFU's Legal and Commercial Committee, I welcome this opportunity to address the Committee on the Fisheries (Amendment) Bill. Firstly, farmers are not the only people who pollute our rivers. It must be accepted that housing and a large section of industry have a direct impact on the land and waterways of Northern Ireland. Farmers recognise their importance of role in the protection of the countryside. Agricultural pollution incidents are not intentional. Farmers make every effort to minimise the risks that their day to day activities have on the environment. Due to the serious decline in farm incomes, it may not be possible for farmers to spend money on necessary improvements to, for example, slurry storage facilities. Even if there were substantial grants to assist that, I suspect that sufficient funds will not be forthcoming for schemes which are workable and accessible to farmers. For instance, the 'Countryside Management Scheme' operated by the Department of Agriculture and Regional Development (DARD) has not offered a contract to any farmer to participate, even though it was launched over a year ago. We know that many applications to this scheme were rejected, because of budgetary constraints. The UFU will continue to lobby for additional funds for environmental work.

3.

Mr Johnston: Given the time constraints, I will be brief. Thank you for inviting us back to discuss the legislative issues. The legislation was drawn up in 1966, before fish farming had started in Northern Ireland, and when we gave evidence to the Inland Fisheries Inquiry, the question of problems with the legislation arose. The Fisheries (Amendment) Bill lends a good opportunity to rectify those. Mr Baird had direct experience of this, so he will enlighten you.

4.

Mr Baird: To put it succinctly, we could not operate if we stayed strictly within the bounds of the current legislation. I want to impress upon this Committee the need for change. It serves no purpose, and it is beyond my abilities, to go through the Fisheries Act (Northern Ireland) 1966 bit by bit in a technical legal manner so I will concentrate on two sections.

5.

Section 59 deals with gratings and lattices - the equipment that keeps leaves and dirt out of fish farms. If there is a break in the flow if water, the fish in the farm will die, so water must be kept flowing at all times. We operate under licence the Department of Agriculture as was - I am not sure what it is now - but that licence, which was issued 30 years ago, specified the size of the lattice required. According to the terms of the licence, a large grating is needed where the waterway to the farm leaves a river, in order to keep out large fish and dead animals. Closer to the farm, a small grating is required in March, April and May to prevent the ingress of smolts and fry. The spacing for that grating is a maximum of 12·5 mm.

6.

In the Act, this 12.5mm spacing is not specified. The Act provides that a lattice of such measurement shall be placed to keep out the fry of trout, salmon and eels. This is impossible, because we also have a hatchery and we deal with fry of trout, so the spacings are tiny -about 2mm - to keep them in. It is absolutely impossible to keep fish of that size out of the farm. If we were to abide by the law again, and put in a screen whose size kept everything out as specified in that section, we would have to close down.

7.

Also, the grating is required for three specific months of the year, and I think there is provision in the Act for an exemption to vary these months. After all, the fish are not aware of when March or May ends. If small fish get into the waterways of the farm during the other nine months, then we are committing an offence under section 48. This provides that we "shall not have in our possession, we shall not obstruct and we shall not injure". Those are the three subsections under section 48. This is a complete anomaly. I was charged under that Act, the case went on for three years, and I was not acquitted at the end. The charges were withdrawn, because the judge said the law needed to be changed. But if it was not changed, he would have to bring a guilty verdict against me. He urged that the law be looked at again because otherwise we would have to go out of business.

8.

I want to convince this Committee that something needs to be done. We will then be willing to meet your technical, legal people, to go through the finer points.

9.

The Chairperson: Are you saying, Mr Baird, that you cannot operate properly without infringing existing law?

10.

Mr Baird: There is a further subsection in section 48 which classes rainbow trout in the same category as trout and salmon. It is therefore illegal for me to have rainbow trout on my farm. That is the height of nonsense, but it is there in section 48 1.(b).

11.

Mr Aston: And rainbow trout is actually the fish that you farm.

12.

Mr Baird: Yes.

13.

The Chairperson: I want to clarify matters before Members begin to ask questions. You also said that if you employed the very tight mesh, as you are required to, you would have to close down. Could you explain a little more clearly why you would have to close down? Is it to do with the volume and speed of the water that would pass through this into your farm?

14.

Mr Baird: Yes. My farm requires something in the region of 10 million gallons of water per day, through flow. Let me give you an idea of the scale of that. Belfast requires about 30 million gallons per day, so I need about a third of the quantity of water that supplies Belfast. You cannot put that through a tiny screen as fine as an old meat safe!

15.

This can be corroborated beyond all doubt by the Department of Agriculture's Fisheries Division, who have overseen fisheries for many years. They know all about this because they themselves have a farm in Movanagher which they could not operate for the same reason.

16.

Mr Johnston: I have quite a fine screen at my farm in Newtownstewart, it is about 12mm, but two of my men were up all of Tuesday night just to keep leaves off it so it would not get blocked up.

17.

Mr McCarthy: Mr Baird, the submission by your union refers to Part II of the Fisheries (Northern Ireland) Act 1966 and a prosecution, by the Fisheries Conservancy Board, of a Union member of an offence under Section 48. Can the Ulster Farmers Union provide further details of this case? Is this the case you mentioned? Can the union provide details about the recommendation of the judge that the legislation be amended?

18.

Mr Baird: Yes, that is my case. I understand that there was no written judgement. He recommended to the prosecution that something be done about it, as it could entail horrendous costs and because it would go as a test case. The Fisheries Conservancy Board, I think, decided to withdraw the charge. I was technically not acquitted.

19.

Mr McCarthy: Can you provide further details of the case to the Committee?

20.

Mr Baird: I have checked with my solicitor and he said that there was no written judgement given.

21.

Mr Shannon: My question relates to Section 48 of the 1966 Act which states:

"If any person wilfully takes, sells, purchases, or has in his possession the spawn, smolts or fry of salmon, trout or eels . he shall be guilty of an offence."

22.

Wilful intent is one component of this Section and possession is the other component. Did the judge find wilful intent on the part of our witness? Secondly - and I know the answer to this but I just want it recorded in Hansard - would the Ulster Framers Union consider that it would be better to amend the legislation to add the words "knowingly", "recklessly" or "dishonestly" to replace "wilfully"?

23.

Mr Baird: I checked on that very wording. Quoting Section 48 - (1) (a),

". wilfully takes, sells, purchases, or has in his possession" ,

"wilful" only pertains to "takes", because there is a comma after it.

24.

Mr Aston: That is just one part of Section 48. There is the idea of 'obstructs' and 'injures' without any mention of "wilfully", particularly in the "injures" section. We are highlighting the need for the legislation to be amended, otherwise every fish farmer in Northern Ireland would be out of business.

25.

Mr Shannon: Replacing the word "wilfully" with "knowingly", "dishonestly" or "recklessly" might be better. Any suggestions?

26.

Mr Aston: We are not legal experts. We are more than willing to talk and highlight the problems but that is only one example of a problem. Another problem, already mentioned, is the possession of rainbow trout.

27.

There are other issues such as grating sizes, which need to be addressed.

28.

Mr Baird: Section 48 has two sub-sections, a and b, which specifically identify matters such as the movement of elvers by eel fishery owners. It may be necessary for another sub-section to be added that takes into account the needs of fish farming. However, as we have mentioned, we are not legal people. We can only point out our problems, and no doubt the legislative draftsmen will know how to deal with them.

29.

Mr Shannon: Have you had any thoughts on wording which would be more appropriate?

30.

Mr Aston: It may range from putting in words such as "wilful", to having a separate exemption for trout farms. The Fisheries (Northern Ireland) Act 1996 was already established before the first fish farm had been developed here. Therefore, while the positioning of commas is important, exemptions are much more satisfactory. We do not know how the problem can be solved. We would require the legal experts to show us.

31.

Mr Wilson: In a letter from the Ulster Farmers' Union dated 27 September 2000, you clearly identify that the aperture of the lattice is too large, that the diameter of the fry is smaller than half an inch, and so on. Will you please clarify what is meant by "the unacceptable practical implications of using a lattice with an aperture smaller than 12.5mm"? Furthermore, are there any developments in work done with electro-mechanical processes? Your colleague referred to his workmen being out in the middle of the night, clearing leaves with a rake or a brush. Has any other process been considered which would avoid that manual labour, and remove such debris from apertures smaller than those presently required by this Act?

32.

Mr Baird: I do not know of any screens with small apertures that can be cleaned mechanically, reliably and safely. I am only aware of those attached to hydropower stations, which are massive in length and possess mechanical brakes. They cost somewhere in the region of £100,000 to £200,000, which is far beyond our means. I have one of the old, early farms; the inlet is an underground 5-foot diameter pipe that opens into a manhole which is 6-foot wide, 8-foot deep and 10-foot long. I cannot change those dimensions, even if I have a more effective screen. I would have to close the entire farm and spend a huge amount of money to make those alterations. That is my interpretation of practical implications.

33.

Mr Wilson: And so the present method is to use a brush, rake or whatever instrument is available to clear the debris?

34.

Mr Baird: Yes. My man is up every autumn night when there is a flood, and this is to clean a 2-inch screen. Can you imagine the end result of fitting a 12.5 mm screen in the autumn? The prescribed period of use for the small screen is between March and May, as it would deal with the major smolt run. At that time, there would not be much debris in the river. However, in the autumn and winter, it is an impossibility to work with a 12.5 mm screen.

35.

Nevertheless, you will be aware that there are still small fish floating around the system. They find their way everywhere, and the untenable situation is that we are held responsible.

36.

Mr Johnston: We are required to have a 5·1 cm screen on all year round, with a small screen for three months of the year. I have installed a finer screen to try to remove debris through the simple mechanical means of passing more water through it. However, there is so much debris comes that people must go out to clean it. I do not have to keep the screen in all the time, but if I remove it for repair or maintenance, fish can get in, and I must put it back again. Fish can get past screens, meaning we are still in breach of the legislation. Electro-screens work in some cases, but not where there is a good deal of debris in the water. It is simply not physically possible for the electric currents to exclude fish. Mechanical screens work only on a massive scale. We do not have large enough business, nor is this industry large enough, to justify it.

37.

Mr Baird: Also electro-screens only work on outlets. They do not protect fish going downwards, for if one stuns them, it makes matters even worse, and they enter the farm stunned. They only work for fish travelling upriver against the current, as these are stunned and fall back.

38.

The Chairperson: Mr Johnston has already said where his farm is located. Mr Baird, where is yours?

39.

Mr Baird: Randalstown.

40.

Mr McMenamin: Mr Mayne, earlier you mentioned the Countryside Management Scheme's not being taken up. Could you elaborate? I presume your members have a code pertaining to the disposal of waste. Could you tell me what it is and how you go about it?

41.

Mr Mayne: The Countryside Management Scheme set up by the Department must have been in development for almost two years now. That is how long it has taken to get farmers through the system. Owing to the restriction on funds, the number of farmers who finally get into the scheme will be minimal compared with their total strength in Northern Ireland. The scheme covers the entire Province outside the environmentally sensitive areas. It is not workable. I attended its launch on Oxford Island in March 1999, and we are still waiting. I believe it might be functioning on the ground by the beginning of November, which must rank as a long timescale by anyone's standards.

42.

We have a code of good farm practice to which probably all farmers adhere. Guidelines are set on pollution and all sorts of things relating to general farm business.

43.

Mr McMenamin: Could we get a copy of that at some stage?

44.

Mr Mayne: Yes. It comes from EU legislation, so it exists in written form, and we must abide by it throughout our farming operations.

45.

Dr Adamson: With regard to both diffuse and point-source pollution, we have heard about the restocking of rivers with fish where that was within farmers' control. What do you think of restocking with other fauna - and with flora as well - to rejuvenate the whole river completely?

46.

Mr Johnston: Though my knowledge of the river's flora and fauna is limited, I believe that the time between the pollution incident and the return to production would probably be a number of years. I do not know how one goes about the replacement of flora and fauna in the river, never mind fish stock. It would certainly take a number of years. Perhaps some of the fishermen could tell you how long.

47.

Mr Adamson: Do you think the farmer should be held responsible for pollution?

48.

Mr Mayne: If a farmer willingly causes pollution then he should accept responsibility.

49.

Mr Aston: I want to reiterate the point that Mr Mayne made at the outset: farmers do not wilfully pollute. Circumstances make it happen.

50.

Mr Mayne: Most of the time it is circumstances beyond their control; it could be weather or a tank bursting.

51.

The Chairperson: I think the nub of Dr Adamson's question is that there could be considerable expense involved in reinstating a river, over and above that required to simply restock it. It is important to get your view on that.

52.

Mr Mayne: If the cost of restocking and replacing flora and fauna is going to put the farmer out of business, I do not think that is a viable option. There has to be a balance somewhere. If you put a farmer out of business and he cannot pay the money, what is the point of taking the case or bringing a charge against him in the first place?

53.

Mr Johnston: A change is needed in the legislation because simply replacing the fish in the waters may not actually reinstate the river. Pollution may have damaged the flora and fauna so much that the fish simply cannot survive there.

54.

The Chairperson: Gentlemen, thank you for your presentation and your answers. It has been helpful. The dilemma we have focused on today in trying to achieve a balance between fish farm viability and protection of wild fish stocks, is a big one. Essentially, you are saying it is impossible for fish farms to operate without interfering with the wild fish stocks fry and sport. This leaves us with a considerable problem.

55.

Mr Aston: We have also extended an invitation to the Committee to visit a fish farm, as part of the Inland Fisheries Inquiry, to see the difficulties involved.

56.

The Chairperson: We have already slotted that in.

57.

Mr Johnston: Mr Chairman, there is little evidence to show that trout farming actually affects wild stocks in the rivers. We simply abstract the water, borrow it and return it. I really hope that other fish farmers operate responsibly and avoid damaging the river stock where possible.

58.

The Chairperson: I think we all share that hope. Thank you very much, gentlemen.

Mr M McGimpsey )
Ms H Campbell ) Department of Culture,
Mr M McCaughan ) Arts and Leisure
Mr G O'Neill )
Ms K Simpson ) Fisheries Conservancy ) Board

59.

The Chairperson: Minister, the floor is yours.

60.

Mr McGimpsey: First of all I will ask the people with me to introduce themselves.

61.

Ms Simpson: Karen Simpson, chief executive of the Fisheries Conservancy Board.

62.

Mr McCaughan: Mark McCaughan, deputy chief fisheries officer for the Department of Culture, Arts and Leisure.

63.

Ms Campbell: Hazel Campbell, principal officer for Inland Waterways and Fisheries.

64.

Mr O'Neill: Gary O'Neill, senior fisheries officer with the Department of Culture, Arts and Leisure.

65.

Mr McGimpsey: I will read a short statement, after which we will answer questions. The Fisheries (Amendment) Bill has now reached the Committee Stage, and members of the Committee will be aware that this piece of legislation is being taken jointly with the Department of Agriculture and Rural Development. All this legislation has a pre-devolution origin- it was then purely a Department of Agriculture for Northern Ireland Bill.

66.

After devolution it was thought best to avoid delay and press ahead so that the provisions would come into effect as soon as possible. There was a very good debate in the House for the Bill's Second Stage, and I am sure that today's discussion will take matters further along the road to enactment.

67.

The Bill's purpose is to make changes to the 1996 Fisheries Act: there are two clauses on sea fisheries, which are the responsibility of the Department of Agriculture, and five clauses on inland fisheries, which are the responsibility of the Department of Culture, Arts and Leisure. I know that the Agriculture and Rural Development Committee will be asking its questions and playing its part on the two Department of Agriculture clauses. I am here to talk about the five clauses which concern the Department of Culture, Arts and Leisure.

68.

Through clause 3, subsection 4(a), which deals with section 48 of the Act, we want to lift restrictions which have the effect of prohibiting trade in salmon roe obtained from fish farms. I should say that salmon roe is a viable product, particularly in view of Northern Ireland's disease-free status. This amendment will allow trade in spawn produced at a fish farm for salmon production primarily for human consumption. We consider this a sensible and reasonable approach.

69.

Our real target for protection is, of course, wild salmon; and it will certainly remain illegal to sell spawn obtained from salmon in the wild.

70.

Subsection 5 of clause 3 is to give the Fisheries Conservancy Board (FCB) the power to control the removal of gravel from river beds. This is an important conservation measure needed to help preserve spawning beds. It is considered necessary for the protection of increasingly threatened fish habitat. Gravel constitutes a key component of fish habitat and is necessary for successful spawning. Removal of gravel from river beds has resulted in a significant deterioration in Northern Ireland's fisheries, and the proposed amendment will help redress the slide.

71.

Clause 4 is about streamlining the administrative process. The clause dispenses with the requirement for the Department of Culture, Arts and Leisure to obtain the agreement of the Department of Finance and Personnel every time it varies charges for fishing permits for fishing the public angling estate.

72.

Currently we have to seek permissions from the Department of Finance and Personnel, but this clause will allow us to proceed without recourse to the Department of Finance and Personnel. Permit fees are matters of detail, and the Culture, Arts and Leisure Committee is a public forum for airing and scrutinising such matters as future permit pricing. The Department is responsible for that, and it is important that we provide the rationale for variations in charges.

73.

Clause 6 confers powers on the Fisheries Conservancy Board to issue licences at reduced rates to classes of persons who merit special consideration, such as the disabled among others, and to provide them with access to the public angling estate. We want to give the board the scope and flexibility to be sensitive to the needs of different groups in society.

74.

The first part of clause 5 allows the Fisheries Conservancy Board to make by-laws. We want to amend section 26 of the Act in two ways. First, we want the Fisheries Conservancy Board to make by-laws in respect of anything relating to the management and protection of fisheries. This power will, in particular, allow the implementation of a salmon carcass tagging scheme, which is designed to improve the management and conservation of wild salmon and sea trout stocks. We will have the opportunity to discuss this further in this session on the fisheries review. Parallel tagging schemes are being introduced by relevant fisheries conservation agencies throughout the island of Ireland. Other agencies already have appropriate powers for the introduction of tagging, and it only remains for the Fisheries Conservancy Board to be invested with the enabling powers to do likewise.

75.

The second part of clause 5 is an amending clause which provides the Fisheries Conservancy Board with powers to regulate salmon fishing for environmental purposes. This will bring Northern Ireland's powers into line with wider powers now available under GB legislation to allow the regulation of fishing for environmental reasons. The GB legislation was introduced in 1995 to ensure that regulators there could protect a marine and aquatic environment to ensure compliance with the European Habitats Directive. A parallel duty was imposed in Northern Ireland under conservation regulations made by the Department of the Environment for Northern Ireland in 1994. The proposed amendment would empower the Fisheries Conservancy Board to exercise such powers here.

76.

Our final amendment, clause 7, relates to powers available to the Fisheries Conservancy Board following a pollution incident. We want to toughen the powers available to the board so that it can reinstate polluted waters and recover the full costs of this from the polluter. We have had a succession of examples of fish kills this year, and over many years, and it is important to toughen the powers of the Fisheries Conservancy Board in this area.

77.

Reinstatement will be expensive. It will include the restocking, restoring and enhancing of a fish habitat to its pre-pollution levels. That involves more than simply replacing the fish that have been killed- it requires an examination of the environment in the entire area where the fish kill occurred. We think that this will have a powerful deterrent effect.

78.

The present powers of the Fisheries Conservancy Board are limited and relate only to the recovery of the restocking costs, but the effects of pollution go beyond the loss of fish in a fish kill. Restocking supplements fish stocks lost to pollution whereas reinstatement takes into account other physical and biological effects that have to be remedied to restore the biodiverse habitat of a fishery such as invertebrat plant recovery and habitat restoration.

79.

That is a brief run over the matters that I am here to discuss, and I am happy to take detailed questions. On occasion I shall be referring to the officials who are with me and obviously have more expertise in these areas. Thank you very much.

80.

The Chairperson: We will proceed straight away to questions in order to make the best use of our time.

81.

Mr McMenamin: Thank you, Minister, for your submission. Clause 3 will allow the trading of farmed salmon roe. While the Department refers to the need to protect wild stocks, it seems that any deregulation in the trading of farmed stocks will inevitably effect wild stocks with the consequent loss of genetic diversity.

82.

What steps are currently in place to prevent this from happening, and are there any additional steps that the Department can envisage taking that would enhance this protection, given the relaxation of the restriction in trading?

83.

Mr McGimpsey: The objective is to facilitate trade in salmon roe and ova from fish farms, while retaining protection for wild salmon. Salmon roe is a product sold by salmon farms for human consumption, and this by-product is dead tissue and cannot be used to reproduce salmon. Fertilised salmon ova for fish farming that are exported and imported are subject to legislative control by the Department of Agriculture and are monitored and recorded by that Department. The record indicates the source of the ovum and its destination. Any fish movement, including that of ova, are unlawful without this documentation. There is no indication of unlawful trade in salmon ova by fish farms or from wild fish, and the Department has no plans for further measures in this area.

84.

Mr McMenamin: The Department has decided to provide a defence for a person found in possession of salmon roe; such as if that person had reason to believe that it came from a fish farm or was produced at a fish farm. In practice, is it not going to be extremely difficult to determine if roe came from a fish farm or not, and is this, therefore, not going to encourage the trade in wild salmon roe?

85.

Mr McGimpsey: There is currently only one fish farm in Northern Ireland producing farm salmon, and it should be straight forward to establish an evidential link between the farm and salmon roe from it in anyone's possession. Farmed salmon roe would be properly packaged, would be of the same grade and stage of development and is likely to be in quantities of several kilograms. Wild salmon roe, by contrast, will be in small quantities, likely to be at different stages of development and very unlikely to be packaged in material from one local farm. The Department has not envisaged a trade in wild salmon roe. Without this legislative provision, it would be impossible for the farm to establish a trade in salmon roe for human consumption, and this change in legislation has been precipitated by demand from the industry.

86.

Mr McMenamin: Final question, clause 3 also provides the Fisheries Conservancy Board with powers to grant consent to the removal of material from other beds- and you touched on this in your submission- on such conditions as it thinks fit and makes it an offence to remove gravel without permission from the board. Who will decide if consent will be given or not? What criteria will be used to ensure minimal ambiguity with decisions?

87.

Mr McGimpsey: The Fisheries Conservancy Board will grant consent and apply conditions to the removal of materials from river beds, so essentially it is the FCB that is being empowered. It will formulate the criteria against which it will make its decisions, and it will have to justify those decisions, if necessary, on appeal to the water appeals commission. Examples of issues that the FCB might look at could be whether an area was an important fishery and whether if removal of material would have a fishery impact. It could also considered the effect of alterations to the hydrology of rivers, for example, whether it might have an impact on redds in the system.

88.

Dr Adamson: Section 208 of the Fisheries Act states that "nothing in this Act shall prejudice the right of any owner to take materials from any stream". What if this negates any powers that might be given to the Fisheries Conservation Board, considering that the majority of material removed from river beds is removed by ripairian owners?

89.

Mr McGimpsey: There is a policy issue at the heart of this question. Section 208 of the Act has applied for 34 years, and the Department of Culture, Arts and Leisure has only just taken over responsibility in this area. We believe clause 3 to be justified as an important protection measure. For the time being, its impact will be constrained by the section 208 provision. We are in the process of taking legal advice on the effect of article 1, protocol 1, of the European Convention on Human Rights and the effect it will have on section 208 of the Act. That is basically the protocol about the property right. We will consult over section 208 with any affected parties as part of any proposal for change or appeal. If it is felt that appeal or amendment is either possible or necessary, such power could be taken reasonably quickly using a vehicle such as the Agricultural and Miscellaneous Provisions Bill. In other words, we need to be certain before we do anything about amending or repealing section 208 so that we are not out of step with the European charter. We are taking advice on that and if we get clearance, we can take it to the next stage.

90.

I accept that most of the material taken from riverbeds is removed by the owners. Therefore that is a major area we will be seeking to influence and control.

91.

Dr Adamson: The Rivers Agency has statutory powers to remove material from riverbeds when carrying out flood control measures. As the agency is a crown body it will not be required to seek consent from the FCB to continue with this aspect of its duties. Does the Department perceive any conflict between the two organisations? What are the structures to ensure that any conflict can be resolved to the benefit of both sides?

92.

Mr McGimpsey: The Rivers Agency has a statutory duty to protect fisheries in the execution of its drainage and flood protection works. The Department recognises the significant contribution the Rivers Agency can make to improving fish habitat. We are also aware that apart from private owners, the Rivers Agency is the main agent for removing material from riverbeds. The Department has raised the matter with the Rivers Agency, and it has confirmed that meaningful consultation will take place with the FCB and consider all reasonable suggestions for measures to protect fisheries. The Department is currently pressing for a formal consultation mechanism to be established between the FCB and the Rivers Agency on adoption of this legislation.

93.

The Chairperson: In most of our rivers, especially the important rivers, there are specific spawning bed areas, which are of high importance to wild fish stocks. Will the Department, or the FCB, be advising the river owners or the Rivers Agency about the sensitivity of certain areas to ensure that those, in particular, are not used for extraction purposes?

94.

Mr McGimpsey: That is a very important point, and we will talk about it later in the inquiry. The Department needs to start designating rivers that are particularly important for fishery purposes. That has not happened to date. I will ask Hazel Campbell to comment.

95.

Ms Campbell: There is already a good consultation process between our technical staff and the Rivers Agency staff. Together they go through the Rivers Agency maintenance programme. There is an agreement that during the spawning season the Rivers Agency does not go into any rivers that are important for spawning. The level of co-operation between the Rivers Agency and our technical staff is already that good, and we want to include the FCB in the process.

96.

The Chairperson: There are some areas with a certain quality of gravel that would attract spawning. Is it correct to say that if they were disturbed and removed, it might create spawning problems?

97.

Ms Campbell: Yes.

98.

The Chairperson: Would they be earmarked as "to be left alone at all cost" until we get to the designated stage? And for farmers also?

99.

Ms Campbell: My colleague, who deals with this on the ground, will comment on these issues.

100.

Mr O'Neill: We advise the Rivers Agency on those parts of the river which are important and have to be left alone for spawning. Most of its work is directed at flood prevention - for example, to property and bridges.

101.

Dr Adamson: The Rivers Agency has conservation officers who supervise the practical aspect of the work to ensure that it complies with the agency's environmental specifications. Who does the Department envisage will perform these duties for the FCB?

102.

Mr McGimpsey: The FCB will have in house the necessary technical expertise to perform the duties conferred on it by the legislation. We recognise that this could have resource implications for the board, and the Department is currently reviewing its funding. There will be some evidence of that in the Budget proposals that will go through the House over the next six weeks. Further funding is required, and we are seeking to empower the FCB. We will look at the revenue consequences thereafter.

103.

Mr J Wilson: The inquiry into inland fisheries has not yet completed its work. Throughout the inquiry, the question of the future and role of the FCB has been raised. Is it not, therefore, jumping the gun to give further powers to the Fisheries Conservancy Board? Is it not sending the wrong message to those who have taken the time to come along to the inquiry?

104.

Mr McGimpsey: I hope that is not the perception. This legislation was in process long before the Committee decided on its inquiry. It is legislation being taken jointly with DARD, as I have already indicated, and it is mainly concerned with implementing environmental obligations, for example, salmon tagging in clause 5, and strengthening the FCB powers in relation to the perennial problem of river pollution. That is a concern for all of us. Had we decided to delay the legislation, we could have missed an opportunity to take steps to make routine, but nevertheless important, changes to the Act. There is nothing to stop the Department from making further legislation in the future, and that is our intention. Further changes can be made in the light of the Committee's report on fisheries, so I do not think that anything will be lost by our proceeding with the legislation. The door is always open, because we have legislative powers to enact whatever measures the Assembly feels are necessary.

105.

Mr McCarthy: Mechanical diggers would, presumably, be used for the removal of river bed material. Will this work be put out to tender? Who will supervise it to ensure that landowners' property and river beds are not damaged? What will happen to the material that is removed? Will there be any co-ordination with the Rivers Agency to ensure that there is no conflict in the type of work proposed?

106.

Mr McGimpsey: The Department will not be involved in the removal of river bed material. That is not our function. The purpose of the legislation is to enable the FCB to control the activities of third parties in relation to the removal of material from rivers, and the FCB will be able to attach conditions to any permission given. As we have already established, it is primarily private landowners or the Rivers Agency who remove materials, so those questions are probably better directed at whoever is carrying out the activity. What we are here to do, through the FCB, is ensure that this does not cause damage to our fishing rivers, to our spawning beds, gravel beds and so on. Thereafter, there will be conditions attached to any permissions granted, and the FCB will certainly be ensuring that those conditions are met.

107.

Mr Shannon: Almost every deputation before this Committee has referred to the commercial netting that has reduced the number of salmon returning to spawn in Northern Ireland rivers. Clause 5 give the board the power to make by-laws for the fishing of salmon. Will clause 5 enable restrictions to be placed on commercial nets?

108.

Mr McGimpsey: The clause allows the FCB to make by-laws in respect of anything relating to the management and protection of fisheries within its area of control. That includes the regulation of commercial nets.

109.

Mr Shannon: You anticipate that it will be able to use that to try to restrict commercial netting.

110.

My other question is in relation to habitat which is also important. Habitat types within a river can be quite diverse. They can be pools or glides and they can occupy just a small part of a river. They may be the most important part of a river for the life stage of fish present, be they embryo, parr, fry or adult. What methods will be used by the Fisheries Conservancy Board to assess the quality of the in-stream habitat for all the life stages of the fish? What methods will be used to ensure that reinstatement of one habitat type does not affect the habitat required by fish at another life stage? It is a balance that we are trying to achieve.

111.

Mr McGimpsey: There are internationally accepted fisheries techniques for assessing the quality of in-stream habitat. Many of those have been developed at the Bush station on the River Bush. Bush station practices have been adopted throughout the British Isles and further afield. While these may differ in detail, depending on the level of the survey, they do essentially compare the same features. The Department has issued a leaflet on habitat assessment, which has been widely distributed among the angling community, and training is being provided for those involved in the Salmonid Enhancement Programme.

112.

The basic technique involves the identification of three types of habitat which game fish require for survival: holding areas, spawning areas and nursery areas. Together, these comprise a habitat unit. The quality of each type of habitat is assessed in manageable stretches of river and categorised from grade 1 to grade 4, based on the number of criteria for each stretch. Information from invertebrate and fish stocks surveys can also be included. This information can provide an accurate assessment of the habitat and the fish stocks within a stretch of river. The information will ensure that reinstatement works will provide the best habitat for fish stocks overall, and there will be no detrimental impact on any class of fish.

113.

Mr McMenamin: Clause 6 amends section 37 of the Fisheries Act (Northern Ireland) 1966, so that the FCB can provide concessionary licence rates to particular classes of person. How many classes of person will be included? Is there any indication that angling clubs support this proposal?

114.

Mr McGimpsey: As you have said, the amendment in the Bill provides the FCB with the power to introduce concessionary licences for different classes. If the board decides to use the powers, it would then specify in subordinate legislation, for example by-laws, the classes of person and the rates applicable. It will be for the board, which comprises a range of fishing interests including anglers, to consult as necessary. I am aware that representations have been made by a number of interest groups and I have already mentioned the disabled. Angling clubs is another area as well. At the moment, the FCB does not have these powers. We are empowering it. Then the FCB will be in a position to determine the appropriate categories of person. The best way forward is on merit - case by case or by category, whether disabled anglers, fishing clubs et cetera.

115.

Mr McMenamin: Would any concessionary rates be given to unemployed people?

116.

Mr McGimpsey: That is another matter that the FCB can take on board. It is a very important point. I have no doubt that there will be a broader discussion in due course about qualifying groups and persons. A very strong case could be made for unemployed people. I believe very strongly in the arguments for disabled anglers, for example. That is very important because they are excluded from so many other activities. This is an activity that they can do and in which they can compete on an equal basis.

117.

Unemployed people could also benefit because, if they have time free, this is a recreational pursuit that may be of value to them. Similar cases can be made for a variety of groups. In this legislation we are trying to give the FCB the power to amend and then it can deal with and listen to these separate cases. As you know the FCB represents a wide range of interest groups.

118.

Mr McCarthy: Clause 7 amends the Act to refer to the state of habitat after pollution incidents. The Committee is aware of the effects of sewage effluent, slurry spreading and chemical discharges on aquatic life. What type of pollution incident does the Department envisage will require a reinstatement of the habitat as opposed to just restocking the fish?

119.

Mr McGimpsey: There are many forms of pollution, not only from toxified water but through direct impact on physical habitat. Quarries are an example of this and sand washing is an example of how damage is caused to gravel beds. At present FCB powers are limited to recovering the cost of restocking fish killed by pollution incidents. This is not always sufficient to repair the damage and to reinstate the fishery fully. The concept of reinstatement will allow the FCB to recover costs to reinstate fish population and habitat. Reinstatement could involve the re-oxygenation of water, the removal and replacement of plant life, detoxifying the poisoned environment and the restoration of the habitat to its previous condition. Restocking with fish may also be part of the reinstatement. Pollution goes well beyond the loss of fish evident from a fish kill. Restocking replaces stocks, but reinstatement takes into account all the other physical and biological parameters necessary for the restoration of biodiversity. It also reinforces the principle that "the polluter must pay" for the damage for which he is responsible.

120.

Mr McCarthy: Has there been any widespread assessment of in-stream habitat by the Department or the FCB of the rivers under their jurisdiction? If there has not been a benchmarking of in-stream habitat quality, how will the Department and the FCB know the level to which the habitat should be re-instated after a pollution incident?

121.

Mr McGimpsey: The Department and the FCB have carried out extensive assessments of in-stream habitat in a wide variety of catchments over a long period. Information has been gathered through the EU Salmonid Enhancement Programme, and follow-up surveys have been collated. These currently form part of an inland database. The Department holds this database at the River Bush salmon station, and one of the functions of this station is to collect and update the data. Further surveys are being conducted under the salmon management plan, which will add to this database. All the information held on the database is available to fisheries owners and angling clubs and has been used in pursuit of private claims for compensation following fish kills. We have a resource there. We expect and envisage that the Bush station will continue to build on this database. Fishery officers from the Department have also provided, and will continue to provide, technical advice. The inland database provides a benchmark for habitat reinstatement in a wide variety of situations. In addition there are well-established fishery techniques, on which stock and habitat assessments can be made for the purpose of reinstatement. For example, habitats and fish stock levels occurring upstream of the polluted area would provide a good indication. Therefore, like could be compared with like if the necessary information was not in the database. The value of fish lost through pollution can be based on the value of wild fish, as opposed to the cost of reinstating using hatchery-reared fish. This is important. The latter are usually much cheaper and are less suited to restocking in the wild. These methods are widely accepted and a number of fisheries cases have been successfully tried in the courts both here and in other parts of the United Kingdom. Habitat and fish stock levels are repeated upstream so polluted areas in similar adjacent streams, of the same catchment, could be assessed and compared with non-polluted areas. It is hardly rocket science, for the expertise and much of the data are currently available.

122.

The Chairperson: Mr Hilditch asked if habitat improvement had actually benefited the fish population, or if there was merely an assumption that it had. What plans does the Fisheries Conservancy Board or the Department have for the storage of indigenous stock samples so there are reserves which can be reintroduced to a particular area if need be? As you know, there is major concern about the loss, perhaps forever, of some indigenous fish stocks. Indeed, there are certain areas where the indigenous stock is unique. Are we taking steps to ensure we have supplies to stock those areas if disaster should strike?

123.

Mr McGimpsey: The legislation refers to habitat reinstatement, and the FCB has the necessary expertise to determine and decide the benefits. It is a matter for the board.

124.

I do not have sufficient scientific knowledge to deal with the second part of your question, and I know you will deal with it later in the inquiry section. A scientist from the Bush station with expertise in this area is with me. Listening to him, we can develop the theme of the genetic strains of fish in Northern Ireland's rivers. It is always an area of concern.

125.

The Chairperson: It impacts, to some extent, on particular clauses in the legislation. However, that will do fine, and we can return to the issue later. You have our thanks, Minister.

31 October 2000

Thank you for your letters of 24 and 25 October 2000 enclosing copies of the transcripts of the evidence I gave to the Culture, Arts and Leisure Committee on 19 October on the Fisheries Amendment Bill 2000 and the Inland Fisheries Inquiry.

Firstly, I attach a number of fairly minor alterations to the transcripts which I hope accord with your advice. These are notified in red ink as requested. They cover my own responses and also the responses of departmental witnesses where appropriate. I hope this is acceptable rather than each witness issuing a separate response.

On reading the transcripts there are a number of points where I feel I need to clarify the evidence and I note this requires to be submitted by a separate letter. The specific references are as follows:-

Paragraph 73 - In this paragraph I made reference to the fact that we were seeking powers to enable the Fisheries Conservancy Board to issues licenses at reduced rates. In the same sentence I made reference to access to the Public Angling Estate. This could be misinterpreted. If concessionary licenses are available for the disabled, these persons would be legally entitled to fish anywhere in the FCB area provided they also have the fishery owners permission. The Department already provides permits at concessionary rates for the disabled for fishing the Public Angling Estate.

Mr N McCreight ) Ulster Angling
Mr P Erwin ) Federation

126.

The Chairperson: I apologise for the delay. We have only 15 minutes remaining, and so perhaps we can try to ask our questions and get your replies as quickly as possible.

127.

Mr McMenamin: You stated in your submission that riparian owners remove the majority of gravel and sand. Do you have any indication if this action is widespread and, to the best of your knowledge, has the removal of gravel and sand adversely affected the fish, particularly the salmon, populations?

128.

Mr McCreight: It depends on the substraight of the particular river. On some rivers it does not happen at all whereas on others it is a very serious problem. For example, there is a lot of gravel in the catchment area on the Moyola river, and habitually after every flood some people within a five-mile radius drive down to the river and collect the recently deposited gravel. This gravel provides the basis for the formation of spawning beds, and if there is no gravel, there is no spawning.

129.

A river is a living thing insofar as it is continually changing and the gravel flows downstream. If this gravel is taken out upstream - even if there is a surplus - it is not available to travel downstream. In the mid-reaches of the Moyola river the gravel of the river is not of the right size and quantity. It may need a scientific study to confirm it, but I consider that part of the problem is because the gravel is being removed before it has had the opportunity to flow downstream.

130.

Mr McMenamin: Is it building contractors who remove it?

131.

Mr McCreight: It can be, but I believe that the main reason for removal is for use on driveways and lanes as a cheap form of aggregate.

132.

Dr Adamson: In your submission you state that you welcome clauses 3, 5, 6 and 7. Do you have any concerns about the Fisheries Conservancy Board's making by-laws for concessionary licences, given the bureaucracy that is already evident in the current licensing system?

133.

Mr McCreight: One of the main functions of the Fisheries Conservancy Board (FCB) for Northern Ireland is to formulate and administer by-laws. This is a very important proposal for disabled anglers who are confined to wheelchairs. Wheelchair anglers can only fish in areas that have been specially prepared for them, which is typically something like 20 to 50 metres even though the river is perhaps 40 or 50 miles long. At present they pay the same licence fee as those who are fit and able to fish the whole river, and that seems unfair. There are probably fewer than 100 wheelchair-bound anglers in Northern Ireland, and so it should be easy to administer a scheme whereby they would apply to the Fisheries Conservancy Board for a special licence or permit that would entitle them to a discount.

134.

Mr McCarthy: You have suggested that riparian owners should pay the administration costs of seeking consent to remove sand and gravel. Do you not think it is unreasonable to ask riparian owners to pay only for receiving consent to remove material from the riverbed? Would this not generate ill feeling towards the Fisheries Conservancy Board and encourage people to remove riverbed material without seeking that consent?

135.

Mr McCreight: Everything has a cost, and obviously that extends to the administration of the scheme by the FCB. Three parties are involved: the Government, who are responsible for the protection of wildlife and the environment; the abstractor, who benefits directly from the abstraction; and the angling clubs and fishery owners, who lose out through this. Who should pay for it? It boils down to whether the Government should support the FCB in carrying out this operation, or whether the charge should be placed on the abstractor.

136.

Mr McElduff: Allow me to apologise to the witnesses and the Committee members first, Mr Chairman, for being late. My Education Committees session clashes with this one, and I want to make sure everybody understands that.

137.

After having given its consent for the removal of material from the riverbed, do you think it necessary for the FCB to monitor the removal operation?

138.

Mr McCreight: Yes, absolutely, otherwise there is no point in the exercise. Also, that is where time and cost enter the equation.

139.

Mr Davis: Clause 7 substitutes "reinstatement" for "restocking". Can you think of an occasion when reinstatement has been necessary as opposed to restocking of a river? What would this entail?

140.

Mr McCreight: Reinstatement does not substitute for restocking; rather, it adds to the restocking process. Pollution can have various effects: obviously it can kill fish, but it can also kill invertebrates which form part of the foodchain, and it can damage the bankside habitat. We know that it is possible to replace the fish by getting more from a fish farm. It is also possible to restock the invertebrates from an invertebrate farm, although that has not been done yet. Oil and silt can damage the river habitat and clog up spawning beds, and both of these pollutants can be removed through an expensive procedure. If bankside vegetation is damaged through chemical or oil pollution, the damaged vegetation can be removed, and more replanted. All these things are necessary if the fishery is to be returned to the condition it was in before pollution.

141.

The Chairperson: That covers the questions we had for you. It was a fairly short run. Forgive us for rushing into it - I was apprehensive about being able to deal with them in a full Committee. May I invite further comments and concerns from you about the Bill?

142.

Mr McCreight: Because of some recent experiences that we have incurred, I am aware that the wording of the amendments is very important. We have been advised by a senior civil servant that in section 59(c) of the Act in force, the word "and" actually means "or", which leaves us nonplussed. I hope the Committee will deal with that to the best of its ability.

143.

It is important that these amendments go through. However, we have referred to section 208, which, if it remains, will render the whole proposal to deal with gravel abstraction quite pointless. I understand the Department did it this way to try to avoid objections from farmers and so on. An owner will continue to be permitted to abstract gravel as before. He can do whatever he likes with it: give it to his neighbour; sell it; employ his neighbour to remove it. We feel quite strongly that, unless section 208 is removed, it really only amounts to window dressing and will have little effect. It is important that this is looked at. Even at the risk of losing that section, it is worth pressing for the removal of section 208.

144.

Mr Erwin: Some rivers, such as the Glens, can take a fair bit of gravel extraction, especially in lower regions. I am a member of the Glens Club, and in those rivers, gravel quite often builds up at the bottom which has to be removed because it causes problems with the waterway. At other times, shoals build up and farmers lift them to use on paths and so on. They can take a certain amount without doing too much damage when a gravel shoal builds up. Remember, farmers are not interested in fish habitat, but the FCB is. If a person does not understand the river and goes over the top, someone must be able to say to him that he may take a certain amount of gravel from a certain point. That is the importance of monitoring. There must be someone to have a look who understands the river and how it works and who can ensure that no one lifts the whole shoal, not leaving enough for the river.

145.

The Chairperson: In his evidence, the Minister said to us that the Department may consider determining certain areas of special importance and protecting them so that no abstraction of gravel or anything else can take place at all.

146.

Mr McCreight: One of the problems with current environmental protection is that places can be set aside as areas of special scientific interest or to be specially protected, but they almost always include a small piece of a river, if indeed it is included at all. A river must be treated in its entirety. Fisheries have lost out because, up until recently, there has been no means of designating an entire river for protection. Under the EU Habitats Directive 92/43/EEC, there are now two or three proposals for a whole river habitat to be protected.

147.

The Chairperson: That is an important point. We heard about that this morning and while it sounded like a step forward at least, I wonder what the impact would be on the rest of a river if one area was deemed safe. What would happen to fry? Would they move down to that part of the river? There might not be the support they need in the shape of food and shelter.

148.

Mr McCreight: As you say, one can protect the upstream part for reproduction and so on. However, if those fish cannot get access to it because of dams, lack of fish passes, or pollution downstream, it is pretty pointless. Rivers must be protected in their entirety.

149.

The Chairperson: That is a good point.

150.

Mr McCreight: There is a point we should have made with reference to clauses 1 and 2. They do not have any direct impact on salmon and sea trout because of the definition of sea fisheries as taking in all sea fish with the exception of salmon and trout. However, they could have benefits, particularly for sea trout in that they could protect the habitat and the food chain to a certain extent. That is worth mentioning.

151.

The Chairperson: You are voicing your support for that.

152.

Mr McCreight: Indeed. As environmentalists, we would.

153.

The Chairperson: If you are content, we can stop. I am quite surprised we have covered so much ground in such a short time. I thank you very much for your submission. I did not go through the introductory formula, for I feel we know each other well enough by now. Thank you. This will constitute an important part of our deliberation on the Bill.

Mr H Thompson ) Department for Regional
Dr B Storey ) Development - Water ) Service

154.

The Chairperson: Gentlemen, you are very welcome. Normally we allow a short presentation, followed by a series of questions.

155.

Mr Thompson: Good afternoon. Thank you for giving us the opportunity to speak to the Committee today. My name is Harry Thompson, and I am the Water Service's technical director. With me today is Dr Bill Storey, the Water Service's principal scientist with responsibility for waste water issues.

156.

I will begin with a short statement of evidence and then Bill and I will try to deal with any points which you may wish to raise. Briefly, Water Service is an executive agency within the Department for Regional Development with responsibility for the provision of water and sewerage services in Northern Ireland. Its functions are set out in the Water and Sewerage Services (Northern Ireland) Order 1973, as amended.

157.

Water is supplied to over 98·5% of households and around 83% are served by the public sewerage system. In addition, Water Service provides a sludging service for over 40,000 septic tanks. The strategic aims of Water Service include the improvement of the quality of discharges from waste water treatment works to meet Environment and Heritage Service's registered discharge standards and the Urban Waste Water Treatment Regulations (Northern Ireland) 1995, thereby protecting the environment and delivering services with increasing emphasis on protecting the environment and promoting sustainable development. The existing environmental demands and regulatory requirements are the major external influences on Water Service, and they are derived largely from EU directives. Future changes in these will place major demands on us.

158.

Water Service allows fishing on its reservoirs subject to measures which protect the quality of drinking water. Fishing rights on fifteen reservoirs have been leased to the Department of Culture, Arts and Leisure, and they form part of the public angling estate. A further fourteen are leased to private angling clubs.

159.

Water Service operates and maintains over 10,000 kilometres of sewers, which collect and transport domestic sewage, trade effluent and surface water for treatment. Drainage area plans identify a need to address deficiencies in the sewerage system. That leads into our capital works programme.

160.

We are currently addressing the problem of combined sewer overflows, which is a major problem in some parts of the sewerage system. These are important features of combined surface water and foul sewers. In storm conditions, large volumes of rainwater in the sewerage system can cause flooding or damage. The combined sewer overflows are designed to allow highly diluted but otherwise untreated waste water to discharge to water courses. The performance of those sewerage systems is being addressed using a national urban pollution management procedure which identifies areas where combined sewer overflows are unsatisfactory, requiring removal or upgrading to reduce the volume or frequency of discharge.

161.

The reliable and effective treatment of waste water and its safe disposal are essential to maintaining public health and protecting the environment. Our ability to undertake the necessary capital investment has been seriously constrained by past funding levels. Substantial capital investment work is still needed to enable us to comply completely with existing standards and to prepare for future stringent standards.

162.

Water Service introduced phosphate removal at waste water treatment works discharging to Lough Neagh and Lough Erne in the early 1980s. This was in advance of the requirement by the 1995 Regulations and has made a significant impact on the amount of phosphorus reaching those bodies of water.

163.

To protect the environment from discharges of dangerous substances, Water Service controls trade effluent discharges to public sewers by means of trade effluent consents.

164.

Until 1998, approximately 40% of the 32,000 tonnes of waste sludge produced annually was disposed of at sea. The majority of the remainder was spread on agricultural land, with a small amount going to landfill. In accordance with the EC Urban Waste Water Treatment Directive, sea disposal stopped at the end of 1998 and a new incinerator was commissioned. Approximately 22,000 tonnes of sludge a year from throughout Northern Ireland is processed at the incinerator, with energy recovery. The remaining sludge continues to be used on agricultural land or landfilled, but the quantity of sludge being spread on agricultural land has very significantly decreased and continues to decrease.

165.

In 1999, Environment and Heritage Service recorded a total of just over 1,500 pollution incidents; of these, 244 were attributed to Water Service. We investigated each of those incidents and instigated follow-up action where appropriate. That included paying for restocking the watercourse affected, if fish had been killed.

166.

Water Service has a very large capital investment programme aimed at improving water and sewerage infrastructure to enable it to meet its public health, environmental and customer service obligations. It is expected that some £300 million will be invested over the next five years in improvements to waste water collection systems and treatment works.

167.

We are aware of our dependence on and responsibilities towards the environment, and we are committed to the principle of sustainable development. Water Service has an environmental policy that commits it to striving for continuous environmental improvement in all areas of business. We aim to demonstrate high standards of care and operational performance and to address a wide range of environmental issues that are of concern to our customers and to the community. These include meeting legal and regulatory obligations, ensuring the safe and acceptable disposal of waste, and minimising pollution and energy consumption.

168.

The envisaged amendment to section 47 of the Fisheries Act (Northern Ireland) 1966 would empower the Fisheries Conservancy Board to reinstate the habitat of a river following a pollution incident, with the cost being borne by the person or body responsible. If the legislation is changed in this way, the Water Service will seek to comply with its requirements whenever appropriate.

169.

Mr McCarthy: Clause 7 seeks to amend section 47 of the 1966 Act so that it refers to the requirement for reinstatement instead of restocking to restore the fish populations. It is intended that reinstatement will include restocking, restoration and enhancement of the habitat to the level that existed prior to pollution. Considering that the Water Service currently pays for the restocking of rivers it has polluted, what is your opinion on having to pay for reinstatement?

170.

Mr Thompson: I have already said that if the legislation were changed in that way, Water Service would seek to comply with the amended requirements, including reinstatement.

171.

The Chairperson: You still have not given us your view.

172.

Mr Thompson: That is a political matter. We are here to provide a service.

173.

Mr J Wilson: Let me put that question in another form. If you comply with the legislation, you will not just be required to restock a river with trout; you will be required to reinstate the river. That means taking on quite a sizeable and costly project. There is an increasing demand for clean water from society. It is a chicken and egg situation. If, as a result of increasing demand, Water Service is not capable of discharging clean water from sewage treatment works, you are caught in a vicious circle. The costs of reinstating a river - not just stocking it with trout - must be considerable.

174.

Mr Thompson: That is correct. Water Service has a vested interest in the quality of water, because it is a user in that sense. The principle of a more sophisticated view of what is required for reinstatement rather than restocking is sensible and in line with EU directives. In principle, Water Service supports it.

175.

Mr J Wilson: But it is more expensive.

176.

Mr Thompson: It is in our interest to minimise pollution events. Water Service seeks to do that, and this will be an added pressure to ensure that it does. Even if there is a higher cost involved - and there is bound to be - we must ensure that the minimum number of such events is attributable to Water Service.

177.

Mr Hilditch: Do you foresee that any of your operations on rivers may necessitate the removal of riverbed material, and therefore potentially bring Water Service into conflict with the Fisheries Conservancy Board (FCB)?

178.

Mr Thompson: No, I do not think so.

179.

Dr Storey: If Water Service has to disturb habitat, it will restore it, as it always has done. For instance, when we have to put pipes across rivers we restore the disturbance caused.

180.

Mr Hilditch: Will there be any conflict with the FCB?

181.

Dr Storey: We consult on all these matters with all the agencies and other interested parties and we take advice from them on how to carry out the projects. The object is to reinstate to the standard that obtained previously.

182.

The Chairperson: Do you mean reinstatement in its true sense?

183.

Dr Storey: Yes.

184.

Dr Adamson: Water Service is a Crown body and discharges by it are not subject to control under the Water Act (Northern Ireland) 1972. However, it is Water Service policy to meet "registered standards" to comply with the 1972 Act. The FCB or Foyle, Carlingford and Irish Lights Commission are consulted as appropriate in relation to these standards. Has this proved beneficial to Water Service in understanding the concerns of FCB? Do you foresee any potential role for this type of arrangement in relation to the proposed Fisheries (Amendment) Bill?

185.

Mr Thompson: This is primarily a matter for Environment and Heritage Service, because they consult in deciding the appropriate standard to be set for the discharge that we seek permission for. However, we do have other contacts with the various fishery bodies and we have a good perception of their concerns and thoughts on such matters through those contacts. I imagine that arrangements will continue in a similar way. Our perception is that they are working satisfactorily.

186.

Mr Shannon: Does the increase in water use in all areas of society pose problems for Water Service with regard to its ability to adequately treat waste water, and therefore increase the potential for pollution of watercourses? Will this mean that Water Service will have an increasing bill for the reinstatement of river habitat and, if so, who will pay for that?

187.

Mr Thompson: We have a complete water cycle, so the starting point from our perspective is our water resources. We have a water resource strategy that attempts to take account of all trends, including the increased use of water, et cetera. That strategy then feeds into our waste water treatment strategy and increased requirements are built in to that resource strategy also. If increasing amounts of water are reaching the sewerage system, our forward design plans will have that built into the strategy projections.

188.

The short answer is "No." It should not create a problem for us that we foresee in our planning systems. You are right, in a sense, that increased usage of water results in increased quantities of water to be treated, but providing our plans take account of that, as they are meant to, there should be no problems regarding increases in pollution.

189.

The Chairperson: Thank you very much for your contribution.

Mr M Hamilton ) DARD -
Mr J Allister ) Rivers Agency

190.

The Chairperson: Gentlemen, you are both welcome. As you know we are deliberating on the proposed legislation and value your views on those proposals. You may wish to make a few comments, by way of introduction, and members will then ask some questions to elicit as much help as we can, I hope.

191.

Mr Allister: We have little to say by way of introductory remarks. We have provided some written evidence, but I would like to outline the role of the Rivers Agency and explain its position within the Department of Agriculture and Rural Development. Under the Drainage (Northern Ireland) Order 1973, that Department is designated as being the statutory drainage and flood protection authority in Northern Ireland. The Rivers Agency, as an executive agency within that Department, has that responsibility. The Drainage Order provides powers to undertake drainage and flood defence schemes as well as maintenance work on water courses. In undertaking those responsibilities the order stipulates that regard has to be paid to the protection of fisheries in the execution of any work.

192.

It is in that context that we have an interest in the Fisheries (Amendment) Bill, and, in particular, with clause 3, which deals with the question of the removal of material from river beds, and requires the consent of the Fisheries Conservancy Board (FCB).

193.

As a Government agency, the Rivers Agency has Crown exemption under the terms of section 7, of the Interpretation Act (Northern Ireland) 1954. Nevertheless it is our desire, insofar as possible, to work within the spirit of the legislation. We have already established procedures for consultation on fisheries issues, and that includes consulting with the FCB, and the Loughs Agency of the Foyle, Carlingford and Irish Lights Commission (FCILC), which is responsible for the same functions in other areas of Northern Ireland.

194.

We see the enactment of the Bill as an opportunity to review our arrangements for consultation, although we believe that they work well at present.

195.

A statutory body with responsibility for considering and making determinations on drainage schemes already exists - the Drainage Council for Northern Ireland. We would not go so far as to seek consent from the FCB, as that would impinge upon the responsibility of the Drainage Council.

196.

Mr Hilditch: You have indicated that the enactment of the Fisheries Amendment Bill is an opportunity to review your working relationship with the FCB. Is the current working relationship formalised, and are there regular meetings to discuss the agency's proposed work programme or a forum to discuss areas of concern?

197.

Mr Allister: There are well-established procedures. In our consultations with the FCB, and other fishery organisations, we work through the Inland Fisheries Division of the Department of Culture, Arts and Leisure.

198.

Prior to devolution and the restructuring of Government Departments, Inland Fisheries was part of the Department of Agriculture. We had a close relationship with them and hope to maintain that. In the interests of joined-up Government it is important to work with the Department that has responsibilities for inland fisheries, and to work through them in consultations with those who have interests in fisheries.

199.

Mr Hamilton: We have well-proven procedures for consultation. We have had an initial meeting with Inland Fisheries in the Department of Culture, Arts and Leisure, and set up liaison meetings with them. These procedures have being ongoing since the mid-eighties, and both interests have benefited substantially. Our area engineers, on the operational side, will develop maintenance programmes in advance of the works. They will present them through the area fisheries manager, who will discuss them with the Fisheries Conservancy Board and, undoubtedly, the Loughs Agency.

200.

Within my environment unit there are two conservation officers, who liaise with Inland Fisheries on the wider issue of the environment and provide an interface with those engaged in other environmental and fisheries considerations. During the works there are ongoing meetings. Post-audits are also carried out on selected watercourses by our conservation officers who report on whether the agreed plan of action has been adhered to.

201.

Dr Adamson: You have stated that the agency attempts to avoid channel work during the spawning season - between December and March - except in an emergency. What would be the nature of such an emergency?

202.

Mr Hamilton: The type of emergency is one where there would be a risk to life or property. In that situation we rely on article 8 of the Drainage (Northern Ireland) Order 1973, which permits us to proceed with work, up to a maximum sum of £25,000, without approval from the Department of Finance and Personnel. Indeed, in recent weeks - albeit in non-fishery areas - we have had to take such action to save property and possible risk to life.

203.

These would be the only times that we would invoke article 8 and if there was a fisheries consideration we would immediately contact our colleagues in the Department of Culture, Arts and Leisure. We would ask them for their opinion, and they would discuss the matter with the FCB.

204.

Dr Adamson: As you correctly state, as a Crown organisation, the agency is not required to seek consent from the FCB before removing river bed material, even if the changes to the Act are made. Will this Bill change, in any way, the agency's approach to its future works programme?

205.

Mr Allister: As I have already said, legislation requires us to protect fisheries, and we have been giving that a high priority. We do not see this as dramatically changing our existing arrangements, because we believe that those already in place are good. Nevertheless, I can reassure the Committee that we are committed to meaningful consultation, and we are committed to taking on board any reasonable requests about fishery measures.

206.

The Chairperson: We will propose legislation that does not require you to obtain the consent of the Board, and that will not necessarily bind you because of your Crown immunity.

207.

Mr Allister: Absolutely, that would be the case, but we are concerned that seeking formal consent would encroach upon the responsibilities of the Drainage Council for Northern Ireland, which is another statutory body set up precisely for the purpose of considering drainage schemes.

208.

The Chairperson: It is not a good word to use, but it is one that could be used - you could "ignore" this piece of legislation because of your Crown immunity.

209.

Mr Allister: Insofar as we can, we will work within the spirit of this legislation. We do not, in any way, intend to ignore it.

210.

Mr Hamilton: Those have been the methods that we have used over the years for the development of various consultative procedures. We have acted firmly in favour of article 40 of the Drainage Order, which is clear as to what our responsibilities should be, and we accept that. However we would not rely on Crown immunity, but would, as my colleague has said, act entirely within the spirit of the Bill as envisaged.

211.

Mr Shannon: In your submission you referred to the Drainage Council as having specific responsibility for considering and making determinations in respect of drainage schemes. Is there a representative of the FCB on the council? If there is not, in the interests of co-operation and understanding, would it be beneficial if there were to be one?

212.

Mr Allister: Under the constitution of the Drainage Council, there is provision for a representative of fishery interests to be on the council. It so happens that the current representative of fishery interests is also a member of the FCB, and there are obviously some benefits in that. I could not give any commitment that that would always be the case. We have got to remember that the FCB has responsibilities in one part of Northern Ireland, and that the Lough's Agency for the Foyle, Carlingford and Irish Lights Commission (FCILC) has similar responsibilities in the Foyle catchment area and for the River Faughan and the River Roe and also with the rivers that flow into Carlingford Lough. So we could not ignore representation of fisheries in that area.

213.

On every occasion that we make appointments to this public body, we have to be directed by the guidelines laid down by the Commissioner on public appointments, which require openness and publication. It is beneficial to have a member of the FCB on the council, but we could not give an absolute commitment that that would always be the case.

214.

Mr Shannon: So do you agree, Mr Allister, that it is beneficial to have representation from the FCB on the council?

215.

Mr Allister: Yes.

216.

Mr McCarthy: Is the agency concerned with the changes of wording in the Bill, which substitutes "reinstatement" for "restocking", considering the possible implications that this might have for the agency? Also, do you foresee a necessity for a closer working relationship with FCB officials when this Bill becomes law?

217.

Mr Allister: The Rivers Agency does not see any difficulty in the change of wording in the legislation, mainly because we have tended, in our works, to go down the route of reinstatement as opposed to restocking. That will always be our objective regardless of the statutory requirements.

218.

Mr McCarthy: What about your working relationship with the FCB when the Bill becomes law?

219.

Mr Allister: That is not a problem. I want to emphasise that we will involve the Fishery Inspectorate of the Department of Culture, Arts and Leisure, in the interests of uniformity across Departments.

220.

The Chairperson: I have no doubt, Mr Allister, that it will be your aim -a praiseworthy aim - but some sources have said that reinstatement did not always take place after the completion of schemes.

221.

Mr Allister: In the type of work in which we are involved it is inevitable that there will be disturbance of the riverbed and, probably, disturbance of fish stocks. That is unavoidable. But we always endeavour to reinstate and to put in place conditions where fish stocks and the fishery habitat will be restored as quickly as possible following works on the riverbed.

222.

Mr Hamilton: That could have been in an historical context - we carried out many schemes for agricultural benefit - but our work now involves capital works and flood defence. The rural aspect is normally maintenance.

223.

We have carried out substantial works in the past, particularly in the Blackwater catchment area, after completion of the scheme. That scheme was probably the last of this type in the foreseeable future because of the complexities within the agriculture industry, and people, including anglers, obviously have perceptions about both schemes. There is a time when those schemes will have to rehabilitate naturally, and that leads to consternation from time to time. But those large types of schemes will not be carried out because of present environmental and agriculture considerations.

224.

Mr Hilditch: The agency has considerable experience in the removal of riverbed material and in general operational procedures in protection of the natural habitat. Are you willing to share this experience and expertise with your colleagues in the FCB?

225.

Mr Allister: Yes. I find it difficult to envisage the circumstances that might arise, but the agency is prepared to share expertise, within the public sector, with the FCB as necessary. I do not know whether this might come in to play, and I noticed in the legislation that the FCB is empowered to give consent to remove material from the bed of a river. If we can offer some advice or help in relation to the terms of consent, we will be happy to do so.

226.

The Chairperson: If that is enacted then there will be a requirement on the FCB to oversee it. Therefore, the benefit of your experience will be helpful in determining how that should be done most effectively.

227.

Mr Hamilton: That is accepted.

228.

Mr Shannon: Do you foresee any problems that the FCB might have in attempting to carry out its duties?

229.

Mr Allister: I do not foresee any clash with the FCB. It is a body that already has considerable experience in relation to enforcement and identifying breaches of fishery law.

230.

But, although we do not foresee any difficulties, one might arise in regard to detecting where something had taken place and who had been responsible.

231.

Mr Hamilton: The situation might arise that we, as an authority, see something happening, such as a massive removal of gravel unofficially by a riparian. We could help by reporting it to the local fishery manager.

232.

The Chairperson: I think that completes our questions, Gentlemen. Thank you, once again, for coming along. As you know, all of this evidence will help us to judge how we progress the legislation, and your contribution is valuable.

Mr P Johnston (Legal Adviser)
Ms I McAuley (Legal Adviser)

233.

The Chairperson: We will spend all of today discussing the Bill, if necessary.

234.

Is it agreed that we deal with the Bill first, and leave other business until the end? I want to go straight to the outline of the Bill and make sure that the Committee's position is very clear and up-to-date. This is the third meeting the Committee has had on the Fisheries (Amendment) Bill, and we have already heard evidence from the Minister, his officials and other interested organisations. The Committee has a number of concerns about the effects of the Bill in Northern Ireland.

235.

The purpose of today's meeting. is to carry out a detailed clause by clause scrutiny of the clauses which come within the Committee's remit. It falls to the Department of Agriculture and Rural Development Committee to prepare a report on clauses 1, 2 and 9 of the Bill. Members will have an opportunity to raise any concerns or suggest any amendments, and they should read the relevant clause and the related commentary in the memorandum.

236.

I am pleased to say that Percy Johnston and Imelda McAuley are here today. The Assembly legal advisers are very welcome, because we need their advice and support as we thread our way, perhaps unsteadily, through unfamiliar areas.

237.

The Committee will deal with clauses 3, 4, 5, 6, 7 and 8 of the Bill. Each clause and each of its subsections will be considered in turn. I am required to point out that we have two options: we can agree that the clause should stand part of the Bill; and we can agree to any approved amendments.

238.

The prime purpose of the Bill is to allow the Department to manage, protect and regulate fisheries on the foreshore around the coastline of Northern Ireland, to provide for the regulation of fisheries for environmental reasons, to permit trade in salmon roe, and to amend certain divisions of the Act on permits and licences. We have sought further clarification from the Ulster Angling Federation on the EC directive 'Conservation of Natural Habitats'. A copy of the response will be handed out. Legal advice is that section 208 does not contravene this directive. We might come back to that in a few minutes.

239.

Members were asked to submit their concerns to the Committee Clerk by Friday 17 November. The Committee Clerk has advised me that a few concerns were received and that she has sought legal advice. Therefore, before we carry out a detailed scrutiny of the Bill, I would like us to deal with each concern. Does the Committee agree? - [Members indicated assent].

240.

The first concern is section 208 and its effect on clause 3 subsection 5. Will section 208 of the Fisheries Act (Northern Ireland) 1966 negate or dilute clause 3 subsection 5, that is the removal of material from the bed of any river? Clause 3 is to amend section 48 of the Fisheries Act (Northern Ireland) 1966. What is the legal advisers' opinion?

241.

Ms McAuley: Section 208 of the 1966 Act is essentially a saving provision. Provisions of this nature would not normally be interfered with by an amendment. Section 208 states that nothing in the 1966 Act

"shall prejudice the right of any owner to take materials from any stream".

242.

This is a general saving provision, protecting the rights of any owner to take materials from a stream and it states that nothing in the Act shall prejudice that general right. In the 1966 Act, however, section 48 states that it is an offence to take certain young fish and certain materials from the bed of the river. There is also a licensing system in the 1966 Act.

243.

The general rights of the owner of a stream are protected, subject to any offence created in the 1966 Act. These rights are also subject to the licensing system in section 11 of the Act. The saving provision in section 208 is not incompatible with the new section 48(5), which would be created by clause 3 of the Fisheries (Amendment) Bill.

244.

The relevant issue for this Committee to concentrate on is the new subsection that will be introduced under clause 3. This new subsection 5 would become section 48(5) of the 1966 Act, providing another defence for the fish farmer or the owner of the stream or river.

245.

This new subsection allows a person to take material from the bed of the river with the consent of the Fisheries Conservancy Board. If consent has been given, no offence has been committed under section 48(1) of the 1966 Act.

246.

Subsection 5 must be read in the context of section 48. It is only relevant to that section and has no wider implications beyond it. It does not clash with section 208 of the principal Act, which is a general saving provision, preserving the rights of stream owners to take materials from a stream.

247.

Owners of a stream have many rights over it - they can take water, debris, gravel and soil from it. These are the usual rights that go with ownership of a stream. The rationale of Section 48 is, however, to protect young and breeding fish. That is why rights of ownership are restricted and a number of defences to the Section 48 offence have been added to the 1966 Act, beginning in 1981 and later in 1991. I do not know whether that has clarified the matter, but I am willing to answer questions.

248.

The Chairperson: You have been extremely helpful. If I own a river or stream and have the ownership rights, does that mean, under this amendment, that I cannot remove gravel from the river without the board's permission?

249.

We were concerned that if gravel - particularly that kind most suitable for the spawning of different fish - were removed without the permission of the board or at an inappropriate time, it might seriously affect their spawning capability.

250.

Ms McAuley: Yes. The board must give its consent. Clause 3(5) states that, if a person removes any material from the bed of any river without permission - potentially including gravel and other material - that person is guilty of an offence. However, as you rightly say, this must be read in the context of the objectives of section 48 of the principal Act. The Fisheries Conservancy Board (FCB), in exercising its powers under these subsections, must aim to protect young and breeding fish of the types mentioned in that section. The provision is not all-encompassing, because only certain types of young and breeding fish are mentioned in section 48(1). However, if removing gravel had an adverse impact on these types of fish, the board would be justified in refusing consent, since this subsection allows it to do so in relation to any material the removal of which might have such an impact. The board may exercise its powers to refuse consent in relation to young and breeding fish.

251.

The Chairperson: If I wished to remove material from the river bed on a part of the river not used by fish for spawning and unconnected with the young, would I still have to obtain the board's permission? It could not legally refuse me if the removal was unconnected with the spawning requirement.

252.

Ms McAuley: If it were absolutely clear that the removal of material from that part of the stream would not have an impact on young and breeding fish, one would not have to apply to the board. However, if these provisions become law, the owner of the stream will of course have to be mindful of them and be able to show that there are no young or breeding fish of the kinds mentioned in section 48 in that part of the stream.

253.

The Chairperson: We might be concerned about that, as leaving it to individual landowners to decide whether a part of the river is a spawning area could create difficulties.

254.

Ms McAuley: The responsibility is placed on the person removing material from the river. Clause 3(5) states that:

"If any person removes any material from the bed of any river without the consent of the Board . he shall be guilty of an offence."

255.

The offence in section 48 also includes disturbing the habitat of young fish, so any disturbance is also covered by the offence. However, if the removal of material from a non-spawning area created disturbance in a part of a stream where young fish live, that could be a problem. If any material were to be removed with the adverse effect of disturbing the habitat of young and breeding fish, consent would be needed from the board in order to avoid committing an offence under Section 48.

256.

The Chairperson: That is very helpful. We are nudging closer to seeing the concern addressed. I apologise for taking up so much time, but I wished to clarify that.

257.

Mr J Wilson: I should like to pursue this a little further.

258.

Removing material from streams causes two problems. First, the removal of gravel which is suitable for breeding from the bed of the stream; and secondly, the removal of gravel after breeding has taken place and eggs have been laid. These two areas of concern amount to the same thing. Material is removed by stream owners to improve drainage and to reduce the risk of flooding. It is also removed from time to time for commercial reasons. The gravel is used for various purposes, and the most readily available supply is from the beds of streams. That is the angling fraternity's concern, and they would wish to have a defence against that built into the legislation.

259.

Ms McAuley: The lynchpin of this is the offence contained in section 48 of the Fisheries Act (Northern Ireland) 1966. The offence referred to in that section cannot be changed. If we turn to section 48, subsection 1, paragraph (d), it states that:

"If any person .. injures or disturbs any spawning bed, bank or shallow where the spawn or fry of salmon, trout or eels may be, he shall be guilty of an offence".

260.

This section does not state where they "are", or where we "know for sure that they are", but where they "may be". That is an offence under the 1966 Act. In relation to your question, the removal of gravel from an area where there may be eggs or young and breeding fish would be an offence under section 48, subsection (1), paragraph (d) of the 1966 Act. However, having said that, the new provision will provide an additional defence. If a person removes any material from the bed of any river with the consent of the Fisheries Conservancy Board, then no offence under sections 48 or 49 of the 1966 Act will have been committed.

261.

Mr J Wilson: This raises a problem, which we may return to later. I had in mind a landowner who removes material or gravel from a stream. If another Government Department also believes that it has the right to remove material for flood defence purposes, it will probably argue that it is improper for it to seek the permission of the Fisheries Conservancy Board if the purpose of its work is flood defence.

262.

Ms McAuley: What are the powers of other Departments in relation to flood defences?

263.

Mr J Wilson: For example, the Rivers Agency, following consultation with, I think, the Drainage Council for Northern Ireland, would, quite rightly, have the power to remove materials from the bed of a stream or river in order to alleviate flooding.

264.

The Chairperson: They may be protected by Crown immunity.

265.

Mr J Wilson: They have made that point to us that they do not consider it helpful to have to seek the board's permission.

266.

Mr Johnston: Perhaps I could state that Government Departments are viewed as one, and one Government Department does not prosecute another. They may have certain differences in the Executive, but that is a different matter - they do not prosecute each other. Therefore, the diggers from the Rivers Agency are not committing an offence under section 48, subsection (1), paragraph (d). That is the short answer.

267.

Mr McMenamin: Is there a code of conduct, and if so, do farmers and landowners know what the law says about the removal of gravel from their streams? Let us suppose that a person removes major debris causing problems in a stream, thereby disturbing a bed. Can he claim ignorance as an excuse? How long does it take to get permission to do work on a stream?

268.

Ms McAuley: That is not a question for us to answer.

269.

The Chairperson: We are only able to avail of legal advice from our advisers. While some related areas are perhaps important, they are connected more with operational issues.

270.

Ms McAuley: One or two of the issues raised by the Member would have legal implications. You asked if ignorance of the law was a possible defence; unfortunately it is not. Landowners and those operating fish farms are expected to know the law. As far as I am aware, this is the code of conduct - I am aware of no other. The code consists only of legislation in force in this area and any forthcoming Acts of the Northern Ireland Assembly.

271.

Ignorance of any offences newly created or which exist under the Fisheries (Northern Ireland) Act 1966 would not be a defence. Specific defences are written into the legislation, and they have evolved over the years. Section 48 originally had one defence, but as a result of the 1981 and 1991 amendments, further defences have been built into it. However, ignorance of the law is not one of those.

272.

Mr McMenamin: Do you have a bounden duty to respond to the farmer's demand within a certain time?

273.

Ms McAuley: I cannot comment on that, for I am not a member of the FCB.

274.

The Chairperson: That is probably an operational question.

275.

Mrs Nelis: Can you tell me how this additional piece of legislation will deal with the problems which Mr Wilson mentioned? For instance, if the owner is a Government agency with Crown immunity, can it argue mitigating circumstances, such as alleviating floods or improving drainage? Rivers are being used for extraction and are being dug up for all sorts of reasons, some legitimate, some not. How does this legislation tighten things up?

276.

Ms McAuley: Subsection (5) creates another defence against the offence contained in section 48. The fundamental element of subsection (5) is that, if a person obtains the board's consent, that person may remove material from the bed of the river. It provides a further defence against the section 48 offence. It builds on what went before and acknowledges that it may, at times, be perfectly reasonable - even necessary to take materials from the bed of a river, even when it disturbs the habitat of certain species of young and breeding fish.

277.

There are times when another Government body or agency is required to take steps to prevent flooding, and this may involve the removal of material from an area containing young or breeding fish or their habitats, or the removal of material which may impact further downstream where young fish may be breeding.

278.

Mr Johnston mentioned that there will be some co-operation between the Departments involved, to decide what will be done on a practical basis, because as we have seen over the last few weeks, flooding is a very real problem. Technically, they would be required to get the board's consent, because removing material without its consent would be an offence under the Fisheries (Amendment) Bill, if this provision is enacted.

279.

Mrs Nelis: It is not co-operation that I am worried about, it is prosecution. For instance, would one Government agency prosecute another if it committed an offence?

280.

Mr Johnston: One might be able to prosecute the contractor who removed material. If Farrens Engineering Co Ltd were digging in a river, even though working for a Government Department, they might be committing an offence. That might go some way towards alleviating the concern.

281.

Ms McAuley: It is the responsibility of the person removing material from streams to know what the law is. If this Bill becomes law, it is up to the contractors, and those involved in removing materials from streams, to be aware of the extent of the offences. Even if the contractor is working for the Department, he should be aware of what the offences are.

282.

Mrs Nelis: My street was dug up ten weeks ago, and it remains dug up. It is like an archaeological dig. The Roads Service and the Water Service cannot decide who is responsible for all of the burst water mains. Was it because of the condition of the water, or was it the person who dug it up? It is a grey area of the legislation which concerns me.

283.

Mr Johnston: It is difficult to answer that in the context of the fisheries legislation. I can sympathise with the Member's concern, but that would be the case even without the Fisheries Act. However, I do not want to sound flippant.

284.

Ms McAuley: May I add another point? The Board can give consent, because that is its role under the proposed provisions: from subsection 5 to subsection 9 of clause 3. There is nothing to stop the Fisheries Conservancy Board giving its consent because of the pressing need to prevent flooding. Perhaps that answers your question.

285.

Mr Shannon: I have a question on 'exemptions'.

286.

The Chairperson: Can we hold back on the issue of exemptions? We will be coming to it later.

287.

Mr Shannon.The matter was raised, I wanted to ask a question on it.

288.

The Chairperson: I want to get the particular issue of section 208, and its effect on clause 3, subsection (5), legally clarified.

289.

Mr McMenamin: Will Government bodies be absolved from prosecution if an offence is committed? Surely that would be totally wrong?

290.

The Chairperson: We cannot ask for a moral opinion, only a legal one.

291.

Ms McAuley: I must emphasise that clause 3 of the Bill will amend the 1966 Act so that it will not be an offence to remove material from the bed of the river if the board has given its consent.

292.

The Chairperson: Is the Committee content with the advice so far on that issue? - [Members indicated assent].

293.

Does section 208 contravene the EC Habitats Directive for the conservation of natural habitats?

294.

Ms McAuley: The short answer is no. Section 208 does not contravene the EC Directive of 1992. This directive is aimed at member states first of all; it is not aimed at those operating fish farms or those who own streams. It calls on the member state of the European Union, in this case the United Kingdom, to take certain measures to conserve certain natural habitats, certain species of habitats and certain types of fauna and flora. These are the three categories which are to be protected and conserved by member states under this directive; the purpose of the directive is to maintain and restore at a favourable conservation status certain habitats, species of habitats and types of fauna and flora. Member states must designate certain conservation areas. Under article 6 of this directive, they must take steps to avoid, in these designated areas, the deterioration or disturbance of natural habitats.

295.

Because section 208 is a saving provision it is simply saying that the rights of those who own streams are preserved, but are subject to offences created under the fisheries legislation in the 1966 Act or subject to any licensing requirements created by that Act. All the rights of stream owners are preserved.

296.

Section 208 does not contravene the EC directive. The directive has been implemented in Northern Ireland by the The Conservation (Natural Habitats, etc) (Northern Ireland) Regulations 1995. Under these regulations, the Department of the Environment must take steps to designate conservation areas. When the Department issues, or takes steps, to designate an area then within that designated area certain rules will apply. It will be a regulated area because the Department of the Environment must enter into a management agreement with the stream owner in order to regulate use of the stream. This is to comply with the EC directive, which the UK must do.

297.

Most streams will not be designated as a conservation area; it will only affect a small number of streams. It is hard to say what exactly the practice is in relation to the Conservation Regulations 1995, but most streams will lie outside of these regulations. There is no clash between section 208 and the directive, because section 208 tells those who own streams, "You can do what you want, subject to the offences created in the 1966 Act and subject to the licensing system under section 11 of that Act". That is where the story ends with section 208. There is no clash between section 208 and the EC directive as implemented by the 1995 regulations.

298.

Mr J Wilson: Section 208 of the Act reads

"Nothing in this Act shall prejudice the right of any owner to take materials from any stream."

As most of the sand and gravel is removed by riparian owners, clause 3 will have minimal impact unless section 208 is removed. What is the legal view?

299.

The Chairperson: That has more to do with the previous issue.

300.

Mr J Wilson: I know, but it is related to the directive.

301.

The Chairperson: We have covered clause 3. We are now dealing specifically with the EC directive and section 208.

302.

Mr Johnston: I understand the Member's worry. The concern is that if section 208 remains, allowing someone to dig as he likes, he might be contravening the directive in some way. First, one is protected by the fact that, if it is an area where spawn are likely to be, one must seek the consent of the Fisheries Conservancy Board. Secondly, regulation 3(4) of the conservation regulations provides that every competent authority, of which the conservancy board is one, has to exercise its functions having regard to the directive. The board cannot give digging consent willy-nilly - anywhere it likes - ignoring the directive. I hope that answers your question.

303.

Mr J Wilson: It does.

304.

Ms McAuley: I should have mentioned earlier that under the 1995 regulations, if the Department of the Environment designates an area as a conservation area, owners of streams in that conservation area will be notified. There is no question of them not knowing that their stream falls within an area that has been designated as an EC conservation area.

305.

The Chairperson: Are there any other questions? We are all content with that advice. Next is the use of the word 'wilfully' in section 48(1)(a) of the Fisheries Act (Northern Ireland) 1966. It has been contended that "wilfully" refers only to "takes" and not to "sells, purchases or has in his possession". Farmers could not take the smolts or fry of wild salmon, trout or eels out of their fish farms and break the law daily. What is your advice?

306.

Mr Johnston: The word "wilfully", in my opinion, governs the verbs that follow it, going back to my distant grammar lessons. The statutory provision could read as follows: wilfully takes, wilfully sells, wilfully purchases or wilfully has in his possession spawn, and so on.

307.

Wilful taking, wilful selling and wilful purchasing are all covered. Will the Chairman repeat the poor farmers' concerns about breaking the law every day?

308.

The Chairperson: The wild salmon or trout get into the fish farm in spite of the farmer's best efforts, so he is in possession of them.

309.

Mr Johnston: He is not breaking the law.

310.

The Chairperson: One of the best examples is eels. As you know, they can manoeuvre themselves anywhere and everywhere, in and out of anything that is damp, never mind something that is filled with water. It is impossible for fish farmers to keep them out if there is high water or flooding.

311.

Ms McAuley: One of the reasons why the word "wilfully" has been included in section 48 is to acknowledge the problem of eels. They can get into very small spaces and it is very difficult to keep them out of some parts of streams. If a person can show that he has taken reasonable steps to prevent the eels from coming in he will avoid committing an offence under this section.

312.

Mr Shannon: I welcome the clarification. The Committee is concerned about the protection of fish farmers who find that eels, smolts or fry had got into their fish farms without their knowing, even though they have made reasonable efforts to keep them out. We want to make sure that those fish farmers are protected by the law. Your interpretation is that there is sufficient protection in the legislation. You said "wilfully takes, wilfully sells, wilfully purchases, wilfully has in his possession". However, if a fish farmer has taken all possible precautions - whether it be reducing the gauge of the fencing to prevent the eels, and so on, getting into his fish farm - he should not be seen to be contravening the law if they do get in. I had hoped that the legislation would be clearer. The Minister has often said that he thinks it is very clear, and Ms McAuley thinks the same. However, the courts are not entirely sure that it is clear. I do not mean to be disrespectful, but the courts are not completely convinced that the present law is sufficient to protect fish farmers.

313.

The Chairperson: When we publish our report to accompany the Bill, will the legal advice you have given here be part of it? Anyone who has any difficulty with the legal opinion could consult it.

314.

Ms McAuley: This is a public session and our advice is given in public. If anyone wants to read the report, they will see our advice in it. A person could quote from the report in the event of prosecution.

315.

The Chairperson: You are concerned about the courts' interpretations. We might be bench marking to some extent.

316.

Mr Shannon: What implications might the information which you have given us today have upon future court cases? If you mean that you have ensured that a fish farmer has protection for "wilfully" having the fry, et cetera "in his possession", then I feel that we have made good progress.

317.

Mr Johnston: Further clarification might be needed. When the word "wilfully" is used it means that the prosecutor has to prove that someone who had an eel in his possession had it wilfully, not just inadvertently, not negligently but wilfully. If a prosecutor can persuade a magistrate beyond reasonable doubt that a person had the possession of an eel wilfully then that person would be convicted. Otherwise he will not. If he is convicted in a magistrate's court he can appeal to the County Court, and he has the right to appeal to the Court of Appeal. I need not bore you with the procedural details, unless you want me to.

318.

Mr Shannon: Is it not imperative that the legislation contain such a reference to the fish farmers and their farms? Could an exemption be given to fish farmers? It is small comfort for fish farmers to be told that they can appeal a conviction. We should sort something out now so that we do not have to go through the whole process again in the future.

319.

The Committee needs to be reassured that the legislation will protect the fish farmers, and that they will not find themselves having to go through an appeal process because we did not get it right today. We have heard the saying that "the law is a ass." If the law does not work it is a ass. This is our opportunity to get it right.

320.

Ms McAuley: Are your concerns based on evidence of prosecutions having been taken when fish farmers have done all that they could do to prevent the commission of an offence under section 48?

321.

Mr Shannon: I understand that prosecutions have been pending. There is a grey area.

322.

Ms McAuley: It seems to be a hypothetical area rather than a grey area.

323.

Mr Shannon: Possibly, but we want to clarify the matter now. We are not bringing this up to just to kill half an hour; we are bringing the matter up because we have a genuine concern. We want to make absolutely sure that the fish farmers will not find themselves in trouble. Their interpretation and mine is that:

"wilfully... has in his possession the spawn, smolts or fry."

would be sufficient to warrant prosecution. Mr Johnston said that it is his opinion that it would not and he tells us that the law of the land will decide. I am saying that we should get it right now.

324.

Ms McAuley: Mr Johnston is saying that the word "wilfully" is a word which has a legal definition. It is used in a technical way not just in the Fisheries Act (Northern Ireland) 1966, but in many pieces of legislation, GB legislation, Northern Ireland legislation and even European legislation. It is not a word, with respect, that can be interpreted by a lay person.

325.

I am sorry if that sounds patronising - that is not my intention. It is a very technical word with a legal meaning. I could go to the Library and show you books which would give scores of cases where this word has been interpreted. It means - and has meant over the course of some considerable time - "deliberately," i.e. with intention. In our view a very significant defence is built into the wording of section 48(1)(a) and (b).

326.

The Chairperson: Are you saying that there is no case history to the contrary?

327.

Ms McAuley: Yes.

328.

The Chairperson: Therefore our concerns about possible interpretations can be allayed by the fact that "wilfully" applies to all of the actions within those paragraphs and not just "takes".

329.

Ms McAuley: That is correct.

330.

The Chairperson: That is the significant point. Once we get that clear, we can proceed.

331.

Mr Shannon: The deputation today has very clearly said that that is the benchmark. That will be the marker for the Committee. We would feel a bit more assured if there were a clause dealing with this. The fish farmers feel likewise.

332.

Mr McMenamin: Mr Shannon put my question very well. When we visited the fish farm last week, that was one of the major worries that the owner had. The word "wilfully" would solve a lot of problems if it ever went to court.

333.

Ms McAuley: That is certainly the word the court would focus on.

334.

Mr McCarthy: Mr Johnston said that no one would be charged. However, last week, people pointed out to us that they had heard this before but that someone had been charged.

335.

Ms McAuley: Yes, but no one is found guilty until the offence is proven. People can be charged with all sorts of offences, but that, in itself, does not mean that they are guilty.

336.

The Chairperson: We looked at the evidence that we received and we could not find any record of such a finding. This is why I think that Ms McAuley's reference to case history is so significant.

337.

Mr J Wilson: I am quite clear on the advice given with regard to the word "wilfully" as far as it relates to "takes, sells, purchases or has". A grey area may be negligence and when a person, as a result of negligence, has something in his possession. Where does the word "wilfully" stand then?

338.

Mr Johnston: The best way is to look at these things like bus stops along a route. You start off with accidentally, carelessly, negligently, and recklessly. The prosecution does not jump the hurdle until it comes to the word "wilfully". The answer to your question is that a prosecution based on mere negligence would be bound to fail.

339.

The Chairperson: Are there any other questions? Are members content with what they have heard?

340.

We move on to the next point about whether "trout" should include "rainbow trout", and I refer to section 48 of the Fisheries Act (Northern Ireland) 1966, as amended by article 12(c) of the Fisheries (Amendment) (Northern Ireland) Order 1991. It has been contended that "to have in his possession the smolt or fry of trout" if "trout" includes "rainbow trout" means that some farmers, who are in the business of the breeding of rainbow trout, are in constant breach of the law.

341.

The Department advises that a fish farmer is covered by article 6 of the Fisheries (Amendment) Order 1991, which specifies the culture of the fish to be farmed under the licence. Is this sufficient legal cover for the farmer, or should it be spelt out in the Act? The Department replied, as members will recall, in writing on this issue. Is that OK?

342.

Mr Johnston: Yes. The licensing system allows a person to do a series of things that would otherwise be illegal. So, if I have a rainbow trout in possession wilfully and so on, I commit an offence. However, if I have a fish farm, I have a licence from the Department to which different conditions can be attached, and which can be revoked, and I can ask for various things to be done to it, subject to a range of safeguards.

343.

A licence permits one to do what would otherwise be illegal. That is how the licensing system of section 11 fits with the offences in section 48 of the Fisheries Act. The two of them look as if they are on a collision course, but they are not. They are on two separate lines - if I may use another metaphor. The licensing system allows one to breed rainbow trout.

344.

Originally, the definition of "trout" in section 206 of the Fisheries Act excluded rainbow trout. It states at the bottom line of the definition "does not include sea trout and rainbow trout". However, that gives way to a contrary intention in section 48, for there the word "trout" includes rainbow trout.

345.

Wilful possession of a rainbow trout is an offence; farming it without a licence is an offence; and farming it in breach of one of the conditions of the licence is an offence. So, the fish farmers, provided they abide by their licence conditions, are not committing any offence.

346.

The Chairperson: I think that is very clear. Are there any questions? Are members content with the advice?

347.

Members: Yes.

348.

The Chairperson: We move to section 59 of the Fisheries Act (Northern Ireland) 1966, one of the more controversial ones. This section specifies the size of gratings and when they should be put in place in watercourses. It has been contended that since the smolt or fry of salmon, trout or eels are very small, they cannot be kept out of the fish farms by the gratings as specified.

349.

It has also been contended that to make the spacing between the bars smaller would mean that the gratings would collect more debris and stop the flow of water to fish farms, thus killing the fish in the farms. Members will have noted the Department's response dated 15 November regarding exemptions, which has been circulated.

350.

Are Members content that these exemption arrangements are sufficient to put this issue to rest?

351.

Mr McMenamin: Referring back to fish farmers having fish, I think that is covered by section 59.

352.

The Chairperson: If members are content with that, we will now deal with the clause-by-clause scrutiny of those clauses that come within the remit of the Committee. I refer members to the Act itself and to the memorandum.

353.

The Chairperson: This clause will be added to the end of section 48 of the Fisheries Act (Northern Ireland) 1966 and will effectively remove the prohibition on trading in farmed salmon roe while retaining the protections for wild stocks.

354.

Do members agree clause 3(4)? - [Members indicated assent].

355.

The Chairperson: Clause 3(5), (6), (7), (8) and (9) have been covered by legal advice. They provide the Fisheries Conservancy Board (FCB) with powers to control the removal of material from rivers.

356.

Do members agree clause 3(5), (6), (7), (8) and (9)? - [Members indicated assent].

357.

The Chairperson: Do members agree that clause 3 should stand part of the Bill?

358.

The Chairperson: Clause 4 removes the requirement for the Department of Finance and Personnel to approve permit fees.

359.

Do members agree that clause 4 should stand part of the Bill?

360.

The Chairperson: Clause 5 paragraph (a) amends section 26 of the Fisheries Act (Northern Ireland) 1966 by providing the FCB with powers to make by-laws in respect of anything relating to the management and protection of fisheries. Those powers will enable the FCB to make by-laws to facilitate the implementation of a salmon carcass tagging scheme throughout the island of Ireland.

361.

Do members agree clause 5 paragraph (a)?

362.

Mrs Nelis: May I ask for some clarification? Page 4 of the memorandum states that the existing legislation authorises the FCB to introduce by-laws requiring identification tags to be attached to any captured salmon, but it does not authorise the FCB to make by-laws to control the use and distribution of tags and to prohibit the sale of untagged salmon. I do not understand what that means.

363.

Mr McMenamin: On the one hand, they say they will tag them, while on the other, they say they will not.

364.

The Chairperson: Is there an illegal contradiction?

365.

Mr Johnston: No. The first paragraph of the Explanatory and Financial Memorandum under clause 5 sets out the existing state of the law, under which the FCB does not have the power to make by-laws about tags. If the proposed amendment is passed, it will provide very wide powers to make by-laws on anything relating in any way to the management and protection of fisheries. The FCB will be able to introduce a tagging regime if clause 5 is passed, whereas under the present legislation it cannot. That is the explanation.

366.

The Chairperson: In response to your concern, paragraph (a) of this clause amends section 26, the present state of affairs. It goes on to show how it would change under the recommendations for alterations to the Act.

367.

Mrs Nelis: The legislative change hinges on the part dealing with the management and protection of fisheries and the paragraph following.

368.

The Chairperson: Yes. The next paragraph indicates the result of the legislation. It will provide the FCB with powers to make by-laws in respect of anything relating to the management or protection of fisheries. These powers will enable the FCB to make appropriate by-laws to facilitate the implementation of salmon carcass tagging schemes throughout the island of Ireland.

369.

The first paragraph only says what the status quo is, while the next paragraph says what the change will be. In that sense, the memorandum is a guide to where we are and where we are trying to get.

370.

Mr McMenamin: Does that mean that in two years' time a hotel which had untagged salmon could be prosecuted?

371.

Mr Agnew: In two years the salmon will be a bit off.

372.

Mr McMenamin: I meant when the legislation is introduced.

373.

The Chairperson: When the legislation is introduced, will all salmon will have to be tagged? My understanding is that this will be the case once the by-laws are in force.

374.

Mr Johnston: This power enables the FCB to make by-laws, including by-laws for tagging. It occurs to me that if it tried to implement a by-law talking about a long-dead salmon, it would be acting outside the ambit of its by-law-making powers, and the by-law would therefore not be valid.

375.

Mr McMenamin: I am thinking of the local angler, who perhaps sells a salmon trout to a restaurant. Would he be breaking the law if it were not tagged?

376.

The Chairperson: You are legislating to enable the FCB to pass by-laws. When it passes the by-laws, perhaps we should examine them and ask about the effect they are having there. Is that fair enough?

377.

Mr J Wilson: Clause 5 will be welcomed by the FCB and the whole angling community.

378.

The Chairperson: Do members agree 5(a)? - [Members indicated assent].

379.

The Chairperson: Subsection (b) of this clause amends section 26 of the Fisheries Act (Northern Ireland) 1966 by providing the Fisheries Conservancy Board with powers to regulate salmon and marine fishing for environmental purposes. We are still dealing with the same memorandum.

380.

Mrs Nelis: In this particular instance how are environmental purposes defined?

381.

The Chairperson: Clause 5 on page 4 of the Bill refers to the conservation of flora and fauna which are dependent on or associated with marine or coastal environments. What we are doing will empower the Fisheries Conservancy Board "to make by-laws under this section in relation to the regulation of fishing for salmon" which may be exercised for (a) and (b), and (b) is the conservation of flora or fauna. Does that help?

382.

Mrs Nelis: Yes, a little. Especially if you do not know anything about it.

383.

Mr Johnston: The point has a legal angle to it. The member has asked if the words are defined. They are not defined in the Act and therefore they bear their dictionary or ordinary meaning, if you like. They do not have a special meaning within the 1966 Act. Maybe that is a bit of a negative explanation.

384.

The Chairperson: What might the implications of that be?

385.

Mr Johnston: The words look as though they are taken from other conservation legislation. However, that does not mean that if they are defined in that legislation, the definition is the same in this. They mean what the dictionary says they mean.

386.

Ms McAuley: In relation to the EC Habitats Directive, under the 1995 regulations, the board must exercise its powers with regard to that directive. In looking at the wording used in subsection 3 (a) and (b), these words are similar, if not identical, to those used in the EC directive which is possibly where they come from. The board must, of course, exercise all of its powers, including its powers to make by-laws, with an eye on what is required of the UK as a member state of the European Union and on what is required under the EC Habitats Directive.

387.

The Chairperson: The directive might be a guide for the board to use when constructing this by-law.

388.

Ms McAuley: Yes. The directive could filter through the board, the board being a medium for the implementation of the directive.

389.

The Chairperson: Would that help with this definition problem?

390.

Mr Johnston: In the exercise of its functions, including the by-law making function, the board should have regard to the Habitats Directive. That may help it to understand what the words mean and to use its powers accordingly.

391.

The Chairperson: Should we be considering an amendment requiring a legal definition?

392.

Ms McAuley: No - otherwise you will end up defining, defining and defining until the cows come home.

393.

The meaning of the words is clear. The board will be restricted in its by-law-making powers to using them only for these purposes. The by-law-making power may be used to enforce EC directive. My advice is not to play around with the wording or to try to define it further. The wording may, in part, originate from the EC directive.

394.

Mrs Nelis: It would be interesting to see the EC directive, because it states here that the power to make by-laws under the section "may be exercised". It does not say that they "should be" or "will be". There is that discretion.

395.

Ms McAuley: The powers to make by-laws may or may not be exercised. If they are, they must be exercised for the purposes contained in (3)(a) or (b).

396.

Mr J Wilson: The angling and conservation interests are taken account of in the EC directive, and the board will have to have regard to that. We should not put in anything that would make it difficult, or impossible, for the board such as "having to have regard to the directive".

397.

The Chairperson: I think that you are right, but it is a very important issue for us. I talked about our shakily walking through this. It is a case of the Committee's learning from this. Mary Nelis's point is a very good one - to try to extrapolate matters to see what we are actually talking about. It has been interesting to see how the EC directive has an impact and the reassurance that it gives to Mr Wilson.

398.

Mr J Wilson: Yes. The conservation measure is built in.

399.

The Chairperson: OK. Do members agree clause 5(b)? - [Members indicated assent].

400.

The Chairperson: Do members agree that clause 5 should stand part of the Bill?

401.

The Chairperson: We now move to clause 6 on reduced duties for Fisheries Conservancy Board licences. Page 5 of the memorandum and page 4 of the Bill are relevant. The clause amends section 37 of the 1966 Act to enable the Fisheries Conservancy Board to make by-laws for the issue of licences at concessionary rates for

"persons of such class or description as is specified in the byelaws".

402.

Are members clear about that?

403.

Mr McMenamin: I can see that that includes people with disabilities. Are there others?

404.

Mrs Nelis: Senior citizens, such as myself.

405.

The Chairperson: We put that issue to the Minister. Mr McMenamin asked him about the unemployed. The Minister was sympathetic, and I think that he agreed to that.

406.

Mr McMenamin: Yes.

407.

The Chairperson: We are giving the legal power to the board to make these by-laws. In doing that, I hope that we will play a part in deciding who is included on that list.

408.

Do members agree that clause 6 should stand as part of the Bill?

409.

The Chairperson: Clause 7 deals with the reinstatement of polluted waters. The memorandum to the Bill deals with the relevant sections on pages 4 and 5. This clause amends section 47 of the Fisheries Act (Northern Ireland) 1966 by replacing the term "restocking" with the term "reinstatement." This will provide the fisheries Conservancy Board with the power to reinstate the habitat of a river following a pollution incident. It is intended that the term "reinstate" should include the restocking, restoration and enhancement of the habitat as it is deemed necessary to return the habitat to the state it was in prior to the pollution offence.

410.

Mrs Nelis: I am concerned by the word "may", that the FCB "may" carry out such restocking. It does not have to. It is discretionary. It may give it an opt out.

411.

Mr Johnston: Section 47(3) was added to the Fisheries Act (Northern Ireland) 1966 in 1991. It begins with the words,

"that where a person has been convicted of an offence under subsection (1), the Board, after consulting the owner of the fishing rights in the waters affected by the pollution may, among other things, recover the cost from the person convicted."

That is the scheme of things. The amendment appears to widen the term "restocking." One could argue that restocking was just putting fish back, but reinstatement is a wider concept. Therefore, the board can chase a convicted person for more costs than merely the cost of putting fish back.

412.

The Chairperson: The point made by Mrs Nelis is that there is no compulsion.

413.

Mr Johnston: That is right. There is no compulsion.

414.

The Chairperson: What do you think of the use of the word "may?" Is it down to the board to decide?

415.

Mr Johnston: It is the responsibility of the board to exercise its discretion reasonably and for proper purposes. If it fails to do so, somebody could challenge that. For example, if I were convicted and fined £2, the board might want to visit the restocking of the River Lagan on me. That would be an unreasonable use of its reinstatement discretion, which I could challenge by judicial review. It must exercise its discretion reasonably and for proper purposes. Certainly, it is not compelled. It is not a "shall"; it is a "may."

416.

Mrs Nelis: There should be a compulsory element.

417.

The Chairperson: Given a hypothetical case, what would your advice be on such a situation?

418.

Ms McAuley: This is a policy issue and therefore for the Committee to decide. It is within your powers to suggest an amendment along those lines.

419.

Mr Johnston: Rather than just taking dry legal advice, it might be wise to speak to the technical people who are dealing with this matter - perhaps someone from the board. There is a considerable difference between leaving the board with discretion and telling it what to do. This is more than a purely legal question.

420.

The Chairperson: There are many circumstances in which graduations of penalties can be used - for example, from people who accidentally or unintentionally are found responsible for pollution through to someone who did not take care.

421.

Mr Agnew: That is why the word "may" is used.

422.

Chairperson: Possibly.

423.

Mr McMenamin: What happens in the event of a major pollution incident for which there is no conviction?

424.

Mr Johnston: The whole scheme of section 47(3) is to follow up a person who has been convicted so that the owner recovers the cost of restocking from that convicted polluter. But there will always be offences which are not prosecuted and people who are not caught.

425.

Mr McMenamin: This is a major grey area that needs to be looked at.

426.

The Chairperson: There are two ways of looking at it. First, the person has to be found guilty of the pollution - his guilt has to be established. If we change the wording from "may" to "shall" or "must" are we not creating a situation in which the cost of reinstating a river would, in certain circumstances, be considerable? What happens if the person responsible has not got the money to pay?

427.

Mr McMenamin: In many cases of pollution, no one has ever been found guilty or convicted.

428.

The Chairperson: There is no way in which we can deal with that. If a wrong has been perpetrated, that has to be identified, and if a person has been found proven to be guilty, action can be taken. There is nothing else you can do in the circumstances. If somebody did it, you have to prove it.

429.

This section is about what action we can take. We may not be making good law by introducing "shall", unless we know exactly what the consequences are. The desire is to make it "shall" because we all want to see the wrong turned into the right.

430.

Mrs White has just advised me that FCB may be liable if the person responsible does not have the money. We may need to take more advice on that.

431.

Mr J Wilson: This is a most welcome piece of legislation, for which the angling community has been waiting for a long time. With regard to the words "may" and "shall", I am very content with the word "may".

432.

There are circumstances in which the word "should" or "must" would be totally inappropriate and would place the board in an awkward position. With regard to pollution, which in some circumstances is traced to riparian owners, farmers and landowners, it would be totally inappropriate in certain circumstances to use the word "must" or "should" in the legislation. The discretion should remain with the board.

433.

Mrs Nelis: I am not happy with it because the other small change will still give the board a lot of discretionary powers. We have heard evidence during our inquiry that the board has not pursued many of the polluters and not carried out its duties as it should have. Perhaps, Mr Chairman, your suggestion that we take some advice on how to tighten this up is wise, advice on whether we change the word "may" or "shall" and how we might seek to ensure that the board pursues the matter.

434.

Mr Agnew: Mr Chairman, can we use "should" where appropriate?

435.

The Chairperson: You are right. We received evidence, through the inquiry, that the FCB did not follow up the evidence given by people in an attempt to find the perpetrators. We are not dealing with that type of situation; rather this is a matter of how to deal with perpetrators after they have been found guilty. There is a difference in that, Mrs Nelis, and to clarify that -

436.

Mr Agnew: It is just a suggestion. If "should" were appropriate, would that cover it?

437.

Mr Johnston: As I have already said, Mr Chairman, it is covered by the words

"may carry out such restocking",

or if you accept the amendment in the Bill

"reinstatement to restore the fish population of the waters as is reasonable in the circumstances, and recover the cost from the person convicted".

438.

The Chairperson: I would like to make an additional point. Members, while I am anxious to get more advice, we are in a corner because we have no time. We need to ensure that we are satisfied that the explanation and extension that are available under the point raised by Mrs McAuley will satisfy everyone.

439.

Mrs Nelis: I am always taking cognisance of Mr Wilson, who is an angler, and the legislation must protect anglers. I do not know anything about fishing. I have to go by the papers in front of me, and from what I have heard so far from people with experience. If the anglers are satisfied that the legislation, discretionary as it may be, will give the board the enforcement powers to deal with those convicted, I am happy enough to let it remain as it is.

440.

The Chairperson: You touch on a point that the Committee should be aware of. Perhaps later on, when matters have settled down, we should look at how these things operate and see what their level of success is. If necessary, we can return to the legislation at some stage to see whether we can make any improvements.

441.

Mr J Wilson: We are looking at an area somewhere between legality and policy. Here we are concentrating on the legal point of view, and, in the circumstances, the word "may" is better than "must" or "should".

442.

The Chairperson: We will tackle that issue. Do members agree that clause 7 should stand part of the Bill?

443.

The Chairperson: Clause 8 is straightforward. Do members agree that clause 8 should stand part of the Bill?

444.

The Chairperson: We have got through the business quicker than I thought we would, largely due to our legal advisers' good advice. I would like to thank them very much on behalf of the Committee. They have clarified a number of issues very quickly and clearly for us, and we appreciate that.

Ms I McAuley (Legal Adviser)

445.

The Chairperson: Good morning, Ladies and Gentlemen. This is an emergency meeting. As you know, our report on the Fisheries (Amendment) Bill is all but complete, but we received some legal evidence late last week that conflicted with what we received from our own legal advisers. In an attempt to clarify the issue and enable the Committee to make a clearer decision, I have invited Ms McAuley to give her reaction to the legal advice that we received from the Department. After that, we will discuss the issues in a question-and-answer session and see if we can work out the best way forward.

446.

Ms McAuley: The first part of this letter, which relates to the issue we are considering today, argues that section 208 of the Fisheries Act (NI) 1966 might affect the new section 48(5). That is the issue which we looked at last time. section 208 - the saving provision in the 1966 Act - states that

"Nothing in this Act shall prejudice the right of any owner to take materials from any stream."

447.

This letter argues that section 208 could potentially be used in defence of someone prosecuted under section 48. They might be able to argue that, in not getting the consent of the Fisheries Conservancy Board, they were covered by the saving provision in section 208, and that they had the right to remove materials from any stream. My advice was that section 208 is a general saving provision that does not affect section 48. I will elaborate on this issue today, because we may not have considered it in sufficient detail last time.

448.

Section 208 is a general saving provision. It is a provision that affects every other section in the 1966 Act; it affects the Act in its entirety. It affects not just section 48, but every other provision apart from section 208 itself. It qualifies every other section in the 1966 Act. My argument last time was that section 208 does not affect the offences in section 48, and that piece of advice still stands. My argument was that section 208 cannot nullify section 48. It cannot trump section 48, because there would have been no point in the Northern Ireland Parliament in 1966 including the offences in section 48 if that were the case. It could not go on in the same Act to have a saving provision in section 208 which would nullify the offences in section 48.

449.

Saving provisions do normally qualify everything else in an Act, so the inclusion of section 208 looks a bit strange because the offences contained in section 48 may involve the taking of materials from a stream. It would seem that there is a head-on collision between section 48(1) and the saving provision in section 208. That is really the crux of the matter. How do we resolve this contradiction, if indeed there is a contradiction? My argument is based on reasoning whereby the two can and, in fact, do add up, whereas Mr McGinn takes the contrary position. Ultimately, however, sections 48 and 208 are open to interpretation.

450.

The reason why I argue that section 208 does not affect the offences in section 48 is that, in days gone by, saving provisions were worded in a general and loose way. Section 208 is a very good example of that; it does not mention any specific provisions of the 1966 Act as lying outside of the general saving. However, it is now the practice in drafting to do so. For example, section 208 might now be worded

"Nothing in this Act, other than certain sections, shall prejudice the right of any owner to take materials from any stream."

451.

In 1966, which is some considerable time ago, saving provisions were worded quite loosely. They did not normally include any exemptions from the saving, because saving provisions were included in order to reassure certain groups of people affected by the legislation. They were a way of saying "Look, we are only restricting your rights in these very narrowly defined areas; we are not making any other inroads into those rights." It was a reassuring measure more than anything else.

452.

Saving provisions are notorious for their unsatisfactory nature, and that is why there have been changes in drafting practice in more recent years. They have been unsatisfactory in the past, because they have caused the kind of confusion that we are faced with today, whereby a saving provision can appear to be in conflict with other provisions of the Act.

453.

My argument is essentially an elaboration on what I said the last time I gave evidence before this Committee. In my view, section 208 does not conflict with section 48, because section 48 was included specifically to create certain offences, one of which is the removal of materials from the bed of a stream or river which have an adverse impact on young or breeding fish. It could not have been the intention of the Northern Ireland Parliament in 1966 to create those offences on the one hand, and then take them away on the other, by virtue of the saving provision. That would be an absurdity. It could not have been the intention of the Northern Ireland Parliament to do so.

454.

The only way to resolve the apparent conflict between these two provisions is to interpret the saving provision in such a way that it is read subject to the offences created in section 48 and the licensing system created in section 11. It is still my view that section 208 should stand. I would strongly advise against repealing section 208. I will give my reasons for that, and then I will go on to discuss other options open to the Committee if it is still concerned about the effects of section 208.

455.

The argument against repealing section 208 - and this was very much in my mind last time, if not explicit in my evidence - is that section 208, being a saving provision, affects every other provision of the 1966 Act. Unless either the Department or this Committee goes through every provision of the 1966 Act to assess its relationship with the saving provision, we would be treading in unfamiliar and unknown territory. The removal of section 208 might impact on other provisions in the 1966 Act. There is a danger therefore that, in repealing section 208, we might be creating some changes that we would not necessarily be aware of.

456.

The other option that is open to the Committee is to amend section 208 to exclude section 48 from the effect of the saving provision. There would then be absolutely no doubt about the enforceability of section 48 and that it is not affected by the saving provision. Perhaps I should have put that option before you last time. Although I am not a draftsperson, an amended section 208 could read something like

"Nothing in this Act, other than section 48, shall prejudice the right of any owner to take materials from any stream."

457.

That would knock the issue on the head. It would clarify the issue completely so that section 48 would trump section 208 in any proceedings that might arise.

458.

The Chairperson: Thank you very much. We respect your interpretation of the situation. Clearly there are doubts, and as you said yourself, they are open to interpretation. If we are to make good law, we should try to reduce the opportunities for interpretation. Therefore, we should go for a belt-and-braces operation if necessary. You are wise to argue against considering the repeal of section 208, but I think an amendment might satisfy the need that we have identified.

459.

Ms McAuley: Does the concern of the Committee relate solely to section 48, where someone is prosecuted because they have not gone to the Fisheries Conservancy Board and received consent?

460.

The Chairperson: Our concern is to protect the ecosystem of the river in order to ensure that the fish population can thrive as freely as possible. We want to make sure that, if you like, the law is stacked in favour of the natural life of the river. Removal of material may upset the entire ecosystem of the river and, in particular, may disturb spawning beds, food sources, and so on.

461.

Ms McAuley: The new section 48(5) relates only to the section 48 offences of disturbing the bed of the river where there may be young and breeding fish.

462.

The Chairperson: There is also the possibility that further down the river, as young fish begin to move, there is an ecosystem on which they depend for their food. If material is removed, that might be upset.

463.

Ms McAuley: That is covered in the new section 48(5).

464.

The Chairperson: I know that you do not give instructions on drafting, but could you outline the recommendation a little bit more slowly, so that we can get it down accurately?

465.

Ms McAuley: Section 208, as it currently stands, states that:

"Nothing in this Act shall prejudice the right of any owner to take materials from any stream."

An amendment could read as follows:

"Nothing in this Act, other than section 48, shall prejudice the right of any owner to take materials from any stream."

466.

It is a case of inserting the words "other than section 48" after the word "Act."

467.

The Chairperson: Do members see any problems or difficulties or require additional information?

468.

Mr J Wilson: I do not want to go over ground that has already been covered, but can you explain to me how the phrase "other than" would strengthen the Act?

469.

Ms McAuley: It strengthens it in the sense that it clarifies the saving provision. There has been confusion over how the offences in section 48(1) stand with section 208, which preserves the rights of an owner of a stream to take materials from it. There seems to be a head-on collision in the 1966 Act between those two provisions, and that has been a matter of concern to the Committee.

470.

The suggested new wording of section 208 would be saying that section 48 stands above section 208, if you like. The saving would not affect section 48, so that in any proceedings brought for an offence under section 48(1), a person would not be able to argue "I took material from the bed of this particular stream; it affected young and breeding fish, but I did not need to get consent from the Fisheries Conservancy Board, because there is a saving provision which states that the owner of a stream can take any materials from it."

471.

There is a small chance that section 208 might be interpreted in such a way so as to nullify section 48 and wipe it out altogether. I think that it is a very small chance indeed but Mr McGinn from the departmental solicitor's office thinks that there is a greater chance of that happening. That is the slight difference in opinion between us.

472.

Mr McMenamin: I do not have a legal mind, nor do I own any land where I would be taking materials from a stream, but my reading of this is that:

"Nothing in this Act shall prejudice the right of any owner to take materials from any stream."

473.

In other words, nothing can stop them from doing that. We are basically trying to stop them from doing that without permission.

474.

Ms McAuley: Is that what you want section 208 to do?

475.

Mr McMenamin: It says here that:

"Nothing in this Act shall prejudice the right of any owner to take materials from any stream."

In other words, he can go ahead.

476.

Ms McAuley: Surely that is not what the Committee wants.

477.

Mr McMenamin: That is exactly what I am saying.

478.

Ms McAuley: That is a possible reason for amending section 208. Then the legal position would be clear.

479.

Mrs Nelis: In amending section 208, we are putting the responsibility on the Fisheries Conservancy Board (FCB) to ensure that the legislation is carried through. While respecting and understanding the rights of the owner, the legislation will give protection by requiring him to get consent from the FCB. In other words, the owner of a river cannot just go in and remove gravel or whatever else from the river. That is where the responsibility lies. That is contained in the legislation.

480.

Ms McAuley: Yes. The new section 48 will require anyone who wants to remove material from a stream, if that may have an adverse impact on young and breeding fish, to get consent from the FCB.

481.

Mrs Nelis: That is not going to change.

482.

Ms McAuley: That is not going to change, and we are now moving towards a possible amendment of section 208 in order to make that even stronger. A person could not argue successfully that they did not need to apply for the consent of the FCB because of section 208.

483.

The Chairperson: I do not want to "muddy the waters," but while I can understand you recommending that we do not repeal section 208, what other areas of the Fisheries Act (Northern Ireland) 1966 might section 208 be protecting?

484.

Ms McAuley: That is a question I have not looked at. I have only looked at the sections that are relevant to this Bill. The Fisheries (Northern Ireland) Act 1966 is a substantial piece of legislation that has been heavily amended over the years. It would take some time to answer that question. Research would be required into the relationship between section 208 and the other sections of the Act.

485.

The Chairperson: We do not need to do that, but it is an interesting question. I thought that you might have been able to give an indication as to what might be involved.

486.

The other issue is the European Convention on Human Rights. What do you think about us putting forward a piece of legislation that restricts the rights of the individual landowner?

487.

Ms McAuley: There are no implications as far as the Convention rights are concerned. The potential issue arises under Article 1 of the First Protocol of the European Convention on Human Rights, which protects the right of property. That is not an absolute right within the convention system; it is a right that may be subject to restrictions. However, those restrictions must be in the public interest.

488.

The restriction that we are considering - section 48(5), whereby a person would be required to get the consent of the FCB - is, of course, a limitation on what someone can do with their property. There is no doubt about that, but it is clear in my view, and also in Mr McGinn's view, that that would not constitute a violation of Article 1. These restrictions are justifiable in the public interest for environmental reasons, which is a ground recognised under the Convention as justifying restrictions on the right of property.

489.

The Chairperson: Presumably if you and Mr McGinn agree, this is likely to be a sound piece of advice.

490.

Ms McAuley: We do agree on this. I am familiar with the jurisprudence of the European Court of Human Rights on Article 1 of the First Protocol, and I am sure that this will not give rise to any breach of the convention rights.

491.

The Chairperson: You will also have seen reference to Article 6 of the Convention in Mr McGinn's letter. What is your view on that?

492.

Ms McAuley: Mr McGinn concludes that there is no violation of Article 6 in relation to the right of appeal to the Water Appeals Commission. The important thing is that the legislation includes an appeal provision and that it is a fair procedure that complies with Article 6. He concludes that it is fair, and does not give rise to any problems in relation to Article 6. That would be my conclusion as well.

493.

The Chairperson: If we amend section 208, will that have any impact under Article 6?

494.

Ms McAuley: In relation to the Convention rights it does not have any implications at all. Section 208 is a general saving provision, preserving the rights of owners, but section 48 does not have any implications for the Convention rights because of the public interest limitation which is built in. Making this amendment to remove section 48 from the effect of the general saving provision would not have any implications for the Convention rights.

495.

Mrs Nelis: In the second paragraph on page 2 of his letter, Mr McGinn says that

"The offences in sections 48(1) and (5) of the 1966 Act would operate to prevent the owner from removing the material in question. But under section 48(5) and (9) the owner is in any event entitled to remove material in accordance with the conditions of a consent under sub-section (6)."

496.

Your analysis is that that does not prevent the owner of a stream from removing material, but Mr McGinn is saying that if we conclude that those rights are extinguished by section 48, there is a contradictory position here. Can you clarify that passage for me? It seems a bit contradictory.

497.

Ms McAuley: Are you referring to the third sentence of that paragraph?

498.

Mrs Nelis: "And all that remains of those rights is the right to act under a consent."

499.

Mr McMenamin: Just to reinforce my argument, Mr McGinn concludes that this section does indeed preserve the general right of the owner of a stream to take material from it without the consent of the Fisheries Conservancy Board.

500.

Mrs Nelis: That is contrary to what we have already heard.

501.

The Chairperson: That is where the difference in opinion rests. While Ms McAuley will stick to her interpretation of it and Mr McGinn, no doubt, will stick to his, it raises the question of being open to interpretation. If we want to make good legislation, we should try to reduce the opportunities for varying interpretations. That is why we have got to the amendment stage.

502.

For members' information, we have to get it drafted properly. We will have to look at that. The Assistant Committee Clerk has just arranged for the drafting office to work on it, and they are working on it now. We will get a look at it shortly and, if she does not mind, maybe Ms McAuley will look at it as well. Does that answer your question?

503.

Mrs Nelis: Yes, Mr Chairperson. What we want to do is to put in place legislation that will protect the rights of the owner, but they are not absolute rights. The owner has responsibility for protection of the environment, especially of fish spawning. We want that to be clear, not ambiguous.

504.

Mr McMenamin: The owner has to get permission prior to the extraction.

505.

Mr Hilditch: How would we deal with an emergency flood situation, where a landowner might not have time to seek permission from the FCB?

506.

The Chairperson: Are you suggesting that during a flood situation the riparian owner might need to remove material from the bottom of the stream? He would not be allowed to do that without consent. Could that create a problem in flooding terms?

507.

Mr Hilditch: Is there not a timescale?

508.

The Chairperson: I am trying to think what kind of an emergency would require removal of material from the bed of a river. That is not covered. I asked about this in relation to other parts of the Bill. For example, if there was a flood situation and a huge tree was washed into a river bed, causing serious damage to surrounding property, the removal of that impediment, whatever it might be, is not what we are talking about here. We are not asking the landowner to get permission to remove that.

509.

Ms McAuley: If it lies on the bed of the river?

510.

Mr Hilditch: At the end of the day, it ends up being one person's word against another.

511.

Mr McMenamin: Maybe that is where the word "wilfully" would be appropriate.

512.

Ms McAuley: If we go back to the main section, the reason for the removal of the tree in that event, if it did lie in part on the riverbed, would lie outside section 48. As you say, the word "wilfully" qualifies the offences in section 48(1), so there would be no intention to disturb the young fry or spawn. The intention would be to remove something that was an obstacle and had to be removed. Yes, the offences that we talked about, and particularly the word "wilfully," would come into play and act as a defence.

513.

Mrs Nelis: You told us the last day that it would not be an offence to remove material if the FCB had given its consent. There is nothing to stop the FCB, in cases where there is a flooding emergency, giving its consent.

514.

The Chairperson: The amendment reads as follows: Clause 3, page 3, line 36: at the end, insert

"2. Section 208 of the principal Act be amended as follows: "Nothing in this Act, other than section 48, shall prejudice the right of any owner to take materials from any stream."."

515.

Mr McMenamin: That was my argument from day one. That is more or less saying "Go ahead and do it."

516.

Dr Adamson: That sounds OK to me.

517.

Mrs Nelis: Section 48 covers the right to act under consent, so they have to have consent.

518.

The Chairperson: Are members in agreement? - [Members indicated assent].

519.

The Chairperson: We have to make a formal amendment to the report. The report is all but ready to go, but we want to replace the line "The Committee sought legal advice on the repeal of section 208." In paragraph 11(2) with "The Committee sought legal advice on amending section 208 of the Fisheries Act (NI) 1966." Are members agreed? - [Members indicated assent].

520.

The Chairperson: We will put in the amendment as I read it out.

521.

Mr Davis: Does what we have agreed to this morning go back to Mr McGinn again?

522.

The Chairperson: I think Mr McGinn would be satisfied with our amendment.

523.

Ms McAuley: Yes, because the Department has concerns about the effect of section 208 trumping section 48.

I am writing on behalf of the Fish Farming Committee of the Ulster Farmers' Union to draw the attention of the Culture, Arts and Leisure Committee to one specific anomaly which we have identified within the Fisheries (Northern Ireland) Act 1966 and which we would ask the Committee to address within the Fisheries (Amendment) Bill.

The point in question relates to the possession of the fry of wild salmon, trout or eels. While we raised this subject directly with the Committee during oral evidence for its Inquiry into Inland Fisheries, we understand that the Committee's consideration of the Fisheries (Amendment) Bill will be conducted separately, we have, therefore, decided to write specifically to the Committee on this particular issue.

When the Fisheries (Northern Ireland) Act 1966 was established, fish farms did not exist within the Province. As such, the Act understandably did not have to address their requirements when it was agreed. Since then, the development of fish farming in Northern Ireland has been interpreted from the 1966 Act. It is this interpretation which have given rise to this specific problem.

Under the conditions laid down in the Fisheries (Northern Ireland) Act 1966, it is an offence to have "in their possession" the fry of wild salmon, trout and eels (section 48 of the Act). Equally, Section 59 of the Act requires anyone diverting water from rivers to have both a two inch screen (5.1 cm) and a ½ inch (12.5 mm) lattice fitted at an inlet to prevent the ingress of smolts and juvenile migratory fish on their downward migration - the 12.5 mm lattice is normally required during the months of March, April and May, but also at any other time when the fry of salmon or trout are descending. These requirements are accepted as being the most practical means of attempting to exclude smolts and juvenile fish but they can not exclude all spawn and fry as:-

1. the aperture of the lattice is too large - the diameter of fry is smaller than 12.5 mm - however, to use a smaller aperture lattice would have unacceptable practical implications for fish farms, hydro stations and DoE or other water abstraction sites;

2. some spawn or fry may enter the farm before the 12.5 mm lattice is in place or after it is removed;

3. eels can climb damp surfaces and, therefore, by - pass the lattices entirely;

4. breakages of lattices can occur and water levels can rise which would permit access for spawn or fry to fish farms without the owner knowing.

It can be clearly seen that the complete exclusion of all spawn and fry is totally impossible in practice, yet under the 1966 Act it is an offence for anyone to have in their possession the fry of wild salmon, trout or eels. It is this anomaly in the present legislation which must be resolved. It has recently led to serious court costs being incurred by one of our Committee Members and the Fisheries Conservancy Board - who took the case against the fish farmer - both in terms of time and money. Indeed, after considering the issue for three years, the Judge in the case strongly recommended that the legislation should be changed to take account of the needs of everyone concerned.

I trust that this information is clear, but please do not hesitate to contact me if it is considered necessary. the Fish Farming Committee of the Ulster Farmers' Union hopes that the opportunity will now be taken to at last resolve this particular issue satisfactorily.

1. The Ulster Farmers' Union represents about 13,000 farmers in N Ireland, which equates to roughly 50,000 farmers and family members.

2. Many of our members have land which does border water courses and so are acutely aware of the need for careful management of their land in order not to have a detrimental affect on the watercourses, or the bankside habitat.

3. The Ulster Farmers' Union is also very aware that there are a considerable number of bodies, parties and other industries which impact on water courses, over which farmers and landowners have no control. The Union would stress that when problems do occur Government Agencies must be very careful to ensure that farmers are not blamed unduly, for something which is not their fault.

4. Farmers are the custodians of our countryside and they recognise the role they have to play in the protection of the environment in which they work.

5. They also recognise that there is scope for improvement and as such there are on which farmers can have a positive effect:-

• site protection of rivers and banksides identified as ASSIs and/or SACs;
• control of stock access to river banks to avoid bankside erosion;
• control of both diffuse and point source pollution, where it is within the farmer's control.

6. By its very nature production agriculture at times may have negative effects on the water environment, however, it is by no means the only source of pollution in the water system. A particular aspect, which requires acceptance by all, is that a large sector of industry and housing impacts directly on the land and watercourses but cannot be easily identified as pollution sources.

7. Concern has already been expressed that when WWTW (Waste Water Treatment Works) are upgraded to fully deal with nutrient extraction from the waste water, diffuse pollution from agriculture would then become the main contributor of pollution to our water system. However, this overlooks one crucial area - the effect of storm water conditions.

8. The Union also is concerned that in times of very heavy rain and flooding conditions WWTWs are allowed to discharge untreated sewage into the water system as they are unable to deal with the volumes of waste water rising.

9. With these types of occurrences it is impossible to differentiate between pollution caused by sewage and that caused by agricultural sources.

10. Another source of diffuse pollution that is occurring but has yet to receive much recognition as being a problem is that of pollution washed off the roads and other non-permeable surfaces directly into the water system. The ever-increasing area of land that is being covered in concrete and tarmac also compounds the problem with increasing levels of surface run-off into a drain system that is not designed to cope with the capacity of water which it is now expected to deal with.

11. Many references have been made about the usefulness of agri-environment schemes in the protection of water quality and of the river bank habitat, through compensation and incentives. The Union is adamant that using a 'carrot' approach as opposed to 'stick' is generally much more effective and hence this approach should be used, where possible, in relation to achieving environmental benefit.

12. The Union feels that it is necessary to highlight that the agri-environment schemes open for farmers to join are woefully under-funded. The scope for financial support for farmers for environmental work is not nearly as comprehensive as we would be led to believe.

13. The current schemes which farmers can apply to join are the Environmentally Sensitive Area Scheme (ESA) and the Countryside Management Scheme (CMS). The ESA scheme applies to 20% of the land area of N Ireland, with the CMS now open to those producers living outside these areas.

14. Uptake of the ESA has been significant, but this has been in part due to the financial as well as the environmental benefits that farmers can attain. The CMS is however another situation. To date no farmers has been offered to contract to take part in the CMS, at the decisions on who can join have not yet been taken. To add to this, the scheme is subject to severe budgetary constraints.

15. While claims can glibly be made about the opportunities open for farmers to avail of these schemes, the detail can provide a rather different picture. In the round of applications for CMS, still to be finalised, over 1000 applications were received by DARD. This clearly shows the level of interest in protecting the environment and the realisation of the importance of environmental protection that exists within the farming community. However, we are already aware that a large proportion of these applications have been turned down due to budgetary constraints.

16. The Union has already stressed on a number of other occasions, the lack of funding for these schemes. Not only is the total budget too small to allow the majority of farmers to participate and be guaranteed payment, but also the payments themselves are not sufficient to adequately compensate producers for the environment work. The money allocated to these schemes is spread thinly to allow as many people to join as possible.

17. Given the current crisis in agriculture, affecting all sectors, few farmers can afford to carry out work that will not bring them financial benefit. Indeed, the financial crisis that has affected farming over the last number of years has meant that many farmers do not have the money within their businesses they would need to order to carry out many of the repairs and updating of facilities they would wish to prevent pollution from their farm.

18. Farmers do not wish to pollute the waters of our country and they recognise the important role they have to play in the protection of our countryside. However, financial constraints can reduce the level of protection that they can offer. Government must recognise this issue and consider methods of being able to fund farmers to carry out necessary work to their facilities to prevent pollution incidents occurring.

19. The Union would support the idea of a one-off grant scheme which would allow farmers to carry out improvement works to their facilities, either to existing facilities or to build new ones in order to bring their farm up to an agreed environmental standard.

20. Another example of the need for more Government support is in the case of fallen animals. Until recent times a market existed for fallen stock and as such it was not an added cost to the farm business to dispose of these animals. Now the picture has changed totally and as such it costs producers to take fallen stock off the farm for disposal, a cost they can ill afford.

21. Agri-environment schemes provide one method of helping farmers to carry out valuable work to protect the environment, especially, in the context of this consultation, protection of riverside habitat and improvement of water quality. However, Government Departments, in this case EHS, must not simply use the presence of agri-environment schemes as the sole answer for farmers to provide additional protection for the environment. The schemes available are simply not sufficiently funded to allow all farmers to participate meaningfully.

10 October 2000

1. Statutory role of DARD, as vested in its Rivers Agency, on arterial drainage in Northern Ireland and statutory duty to protect fisheries

The Department of Agriculture and Rural Development (DARD) through its Rivers Agency, acts as the statutory drainage and flood protection authority in Northern Ireland. Under the Drainage (Northern Ireland) Order 1973 it has discretionary powers to undertake drainage/flood defence schemes and maintenance works on watercourses in Northern Ireland which are designated by the independent Drainage Council for Northern Ireland. These discretionary powers are however bound by a statutory duty to protect fisheries in the execution of any works.

2. Rivers Agency interest in the Fisheries (Amendment) Bill

The Rivers Agency has an interest in the Bill in so far as its provisions to enhance fishery protection may interface with the exercise of the Agency's statutory functions under the Drainage Order.

3. Of particular interest to Rivers Agency is Clause 3 which creates an offence in relation to the removal of any material from the bed of any river without the consent of the Fisheries Conservancy Board for Northern Ireland (FCB) or the Loughs Agency in respect of the Foyle and Carlingford Systems.

4. The Rivers Agency notes and accepts the current position that as a Crown body it is not required to seek the consent of FCB etc to any works in the bed of a river.

5. Rivers Agency has a well-established framework via Inland Fisheries, Department of Culture, Arts and Leisure for consultation with the FCB and other fishery interests on any proposed works which have a fishery interest.

6. Within the spirit of the Bill the Agency is prepared to review its arrangements for consultation with fishery interests and to take on board all reasonable suggestions for measures to protect fisheries.

7. The Rivers Agency operations on drainage are subject to scrutiny and determination by the independent Drainage Council for Northern Ireland, which includes fishery representation.

1. Statutory Role of DARD Rivers Agency on Publicly Funded Drainage

Under the Drainage (Northern Ireland) Order 1973 DARD acts as the statutory drainage and flood protection authority for Northern Ireland, with discretionary powers to carry out works at public expense on watercourses designated by the independent Drainage Council for Northern Ireland. The DARD functions on arterial drainage are carried out by the Rivers Agency, established as an Executive Agency within the Department in 1996.

2. Statutory Duty to Protect Fisheries

Article 40 of the Drainage (Northern Ireland) Order 1973 places a statutory duty on the Agency to provide protection for any fishery that may be affected by the carrying out of drainage works or associated operations.

3. The Rivers Agency's main interest in the Fisheries (Amendment) Bill relates to Clause 3 which creates a new offence for any person to remove any material from the bed of any river without the consent of the FCB, or the Loughs Agency in respect of the Foyle and Carlingford Systems. The Agency notes and accepts that as a Crown body it is not bound by this requirement.

4. Rivers Agency flood defence/drainage works of necessity sometimes involve such operations in the channel or bed of a river. Except in the case of emergency, the Agency programmes its works to avoid channel work during the spawning season (December to March).

5. Consultation Procedures

The Agency is committed to carrying out all its works in an environmentally friendly manner, including the provision of effective fishery protection measures. To this end it consults via Inland Fisheries, Department of Culture, Arts and Leisure, with the Fisheries Conservancy Board and the Loughs Agency.

6. The enactment of the Fisheries (Amendment) Bill will provide an opportunity to review the arrangements for consultation with the FCB and the Loughs Agency and to reaffirm the commitment to fishery protection. It is not however considered to be in the public interest that flood defence/drainage schemes and river maintenance works should be subject to FCB or Loughs Agency consent.

7. The implications of such a policy would be that the FCB and not DARD/Rivers Agency would take decisions on whether such works would proceed. This would undermine the statutory function of another statutory body, the Drainage Council for Northern Ireland, which has specific responsibility for considering and making determinations in respect of drainage schemes.

8. Rivers Agency will continue to have meaningful consultations with the FCB and the Loughs Agency about any works which it proposes to undertake in a river which has fishery interest and to take on board all reasonable suggestions to protect fisheries. This can be achieved without seeking the formal consent of FCB or the Loughs Agency.

10 October 2000

The Federation welcomes these proposals and in particular Clauses 3, 5, 6 and 7, which will enhance the provision in the Act.

In relation to Clause 3 we make the following comment:

1. As the Board's protection work is financed solely by fishing licence duty, applicants for consent to remove material from river beds should pay a fee for administration.

2. Section 208 of the Act remains in force. It reads:- Nothing in this Act shall prejudice the right of any owner to take materials from any stream.

As the majority of sand and gravel is removed by riparian owners this amendment will have minimal impact unless Section 208 is removed.

Section 208 may be in breach of EC Habitat Directive!

PHYLLIS GLEN
Assistant Secretary

2 November 2000

In reply to your letter of 27 October re above, the EC Directive we referred to is Directive 92/43/EEC. Conservation of Natural Habitats.

Annex II includes the fresh water habitat of Atlantic salmon (Salmon SALAR) as requiring protection.

The removal of gravel would undoubtedly damage the habitat.

Trusting you find this helpful.

PHYLLIS GLENN
Assistant Secretary

21 November 2000

In answer to your telephone enquiry fish culture licences in relation to fish farms specify the fish species to be farmed.

D ARNOLD

15 November 2000

I enclose a list of exemption permits under sections 58 and 59 of The Fisheries Act (NI) 1966 as agreed at the Inland Fisheries Inquiry Hearing on 19 October 2000. I would ask the Committee to note that the information is classified "commercial in confidence" as the conditions specified in each permit represent an agreement between this Department and individual commercial businesses. The Department has not previously issued this information into the public domain and would not do so without the agreement of the operator. The information is therefore provided to the Committee on a "commercial in confidence" basis.

The Committee will appreciate that it is impossible to frame legislation for the protection of migratory fish which would suit every location and that is why the Fisheries Act provides for the Department to grant exemptions certificates where it is satisfied that acceptable and in many cases superior alternative measures can be provided. As Mr McCaughan indicated at the hearing the term "exemption" is an unfortunate choice of wording as it does not properly reflect the provision and intent of sections 58 and 59 of the Act. The "exemption" facility enables fishery protection to be adopted to meet the requirements of individual sites but only with the agreement of the developer. The Department would not consider the issue of an exemption unless protection measures are included which are at least as good as those specified in the Act or better and the Committee should be aware that there is consultation between the applicant, The Fisheries Conservancy Board or the Loughs Agency and DCAL technical staff to establish this.

You will see that the conditions attached to the permits vary considerably and some have no conditions attached. The latter reflect conditions on site where the abstraction does not pose a threat to migrating fish and the exemption permit enables fish to move through the site without impediment, for example at numbers 3, 6 and 14. Under such circumstances the requirements of the Act may pose a greater threat to fish than the site where for example descending smolts could be pressed against gratings by the flow of water and an exemption removes this possibility. Exemptions are also used for abstraction sites where there are no fishery interests.

I should also explain that exemption permit conditions and the provisions of the Act can both be utilized at the same time. For example, an exemption permit can enable ascending fish to be diverted by an electric barrier, but the downstream migration of smolts is protected by the Act through the provision of gratings.

Finally as a general comment on the legislative position, the tenor of the provisions in the Act is not to frustrate development but to seek to achieve a balance between legitimate water users and the provision of proper measures for the protection of fish. The Department has built up considerable knowledge and expertise in modern methods to protect fish and these are applied where ever possible to ensure optimum conditions for the protection of fish.

HAZEL CAMPBELL

29 November 2000

As you point out in your letter, clause 3 of the above Order will amend section 48 of the Fisheries Act (NI) 1966 ("the 1966 Act") 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 Fisheries Conservancy Board ("the Board"). It will allow the Board to attach conditions to the consent and it provides for an appeal mechanism (to the Water Appeals Commission) against the refusal of the consent. Section 208 of the 1966 Act, however, includes a specific saving to the effect that

The Department's fear is that this section could neutralise the effect of clause 3. I have to say I think that this fear if well founded. In this context, I have read the evidence given to the Statutory Committee for the Department of Culture, Arts and Leisure by Ms McAuley. I am afraid, however, that I must respectfully but firmly disagree with the views that she has expressed. The rationale for her arguments seems to be contained in the following paragraph.

I am that I can see no basis for saying that the general saving contained in section 208 of the Act is subject to any offence created in the 1966 Act. In fact quite the opposite. This proposition seems to me to fly directly in the face of the nature of a saving provision. A saving provision is in effect a proviso in that its function is to qualify or create exceptions to a particular rule or set of rules. Its function is to preserve existing rights or powers from the effects of restrictions or prohibitions therein.

The notable thing here is that section 208 qualifies the whole of the 1966 Act. That is to say every provision in the 1966 act is qualified by the saving provision and must, therefore, be read subject to it. Under section 48(1) and (5) of the 1966 Act (the latter being inserted by the above Bill), it is an offence to remove material from the bed of a stream. This is a simple prohibition. An exception to this prohibition allowing the owner of a stream to remove material from it cannot logically be subject to the very prohibition it was itself intended to qualify.

One can, however, demonstrate this proposition in a different way. If Ms McAuley were correct and section 208 must be read subject to the offences referred to above, what would be the purpose of the saving? The offences in section 48(1) and (5) of the 1966 Act would operate to prevent the owner from removing the material in question. But under section 48(5) and (9), the owner is in any event entitled to remove material in accordance with the conditions of a consent under sub-section (6). On Ms McAuley's analysis what function does section 208 then perform? How does that section protect the general rights of the owner of a stream to remove material from it if, on her argument, those rights are extinguished by section 48(1) and (5) of the 1966 Act and all that remains of those rights is the right to act under a consent? I conclude, therefore, that this section does indeed preserve the general right of the owner of a stream to take material from it without the consent of the Board.

The question is, therefore, whether the Department could include in the above Bill a clause to repeal section 208. This in turn depends on whether such a clause would be within the legislative competence of the Northern Ireland Assembly.

Section 6 of the Northern Ireland Act 1998 sets out the limitations of the power of the Assembly to legislate. Of these, I think only subsection (2)(c) (incompatibility with Convention rights) is relevant to here. It seems clear almost beyond argument that imposing a requirement for the consent of the Fisheries Conservancy Board for the owner of the bed of the stream to remove material from it brings Article 1 of Protocol 1 of the Convention into play. This provision states that

The Court has said that this Article comprises three distinct rules:

It is important to bear in mind the distinction between the three rules because they deal with a variety of different types of interference with property rights. There is, on the one hand, the deprivation of possessions constituted by a power of confiscation. On the other hand there is the interference with peaceful and enjoyment of possessions which is (as in this case) inherent in the requirement for the consent of a public authority before the owner is enabled to use his possessions. As we have seen, it is the second paragraph of Article 1 which confers on a state the right to control the use of property in the public interest. Restrictions of this kind include those which result from planning controls (see, for example, Pine Valley Developments -v- Ireland) and environmental orders (Fredin -v- Sweden). This provision makes it clear that the right to property is not an absolute one. Rather, it requires justification or any interference. In order to be justified, interference with property rights such as we are discussing must be -

(a) in accordance with conditions provided for by law;

(b) in the public or general interest; and

(c) as a general rule be compensatable.

The first essentially means that the grounds for this interference in the property in question must be sufficiently clear and precise to allow the individuals concerned to know where they stand. Beyond this, the law must provide protection against arbitrary exercises of power. In this context, it is important that there will be an appeal mechanism to any refusal of the Fisheries Conservancy Board to issue consents. I think this does provide a more than adequate guarantee against an arbitrary exercise of power by the Board.

The second requirement is that control of property rights must be "in the public interest". However, here the hurdle is not particularly high. In the James case, the Court held

In the present case, the need to prevent the owner of private property from exploiting it in a way which is detrimental to the general environment is an obvious and widely accepted one. I am, therefore, happy to accept that the controls you mention are defensible in the public interest. In this context, it is important to stress that there is no requirement that the Member State show the necessity of the measures in question. For example, as the Commission observed in Handyside

That brings us to the third issue, namely that of compensation. It is important here to say that there is no absolute requirement for compensation. Any requirement for compensation is based solely on the notion of balance between public and private interest. The question here (and I think it is potentially a very difficult one) is to what extent making a landowner's right to exploit to exploit his own land subject to the requirement of consent does require some form of compensation. The individual concerned may indeed obtain the necessary consent, in which case clearly no compensation is required. On the other hand, the clear intention is to limit (and presumably limit quite severely) the amount of material that can be removed form streams.

In this context, I think that a very relevant consideration will be the value of the rights concerned. As I have already observed, the requirement for compensation is based solely on the notion of balance between the public and private interest. Essentially it asks whether it is fair for a small group of individuals to bear the sole cost of advancing the public interest or whether society as a whole should make a contribution in the form of compensation for them. So if, for example, an individual could point to significant financial investments which were dependent upon the supply of material from a stream owned by him then compensation in that case would be very difficult to resist. On the other hand, the less important, especially in pecuniary terms, the rights to extract material are the easier it will be to justify having no compensation provision.

There is one final issue in relation to the application of the European Convention on Human Rights. This concerns Article 6 which applies to the determination of civil rights and obligations. It guarantees an individual of a right to a fair and public hearing in the determination of "his civil rights and obligations". It seems that among the "civil rights and obligations" concerned here must be included the right to property. If we take the Pudas case as an example the applicant held a licence to operate a taxi on specified routes. As part of a programme of rationalisation which would have involved the replacement of one of his taxi routes by a bus service, the licence was revoked. Various administrative appeals against revocation of the licence failed and the applicant successfully alleged a violation of Article 6(1). In doing so it held that the revocation of the licence effected the applicant's business activities and that on that basis it applied. On this basis, any state action that is directly decisive for property rights is "determinative of civil rights and obligations" and is, therefore, subject to Article 6.

Although strictly speaking the rights in this provision do not include the right to an appeal, since it is primarily concerned with courts of first instant, an appeal mechanism is very significant. Where that mechanism complies with the requirements of Article 6, any defects in the procedures of the "court" of first instance (in this case the Fisheries Conservancy Board) can be corrected The real issue is whether the system for making decisions taken as a whole is such as to meet the requirements of Article 6. In this context, the essential question is whether there is access to an independent and impartial tribunal established by law. In short this means that the tribunal must be -

(a) determining matters within his competence on the basis of rules of law and after proceedings conducted in a manner prescribed by law;

(b) it must be independent of the executive and also of the parties; and

(c) it must be impartial in the sense of lacking prejudice or bias.

I know that you have already had legal advice about the need to make the need to provide an appeal mechanism for the granting of consents. I assume, therefore, that it has already been considered that the Water Appeals Commission satisfies all of these requirements. I do not propose to comment on this aspect further.

I hope that this if of assistance.

PAUL McGINN