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UK subordinate legislation - Notifications for consent

Letter from the Cabinet Secretary for Rural Affairs and Islands, Mairi Gougeon, to the Convener, 24 January 2022

Dear Finlay,

SI NOTIFICATIONS FOR CONSENT

Many thanks for your letter (sent by e-mail) on 7 December 2021 informing me of the consent provided by the Committee to the two notifications for UK SIs considered at the Committee’s 1 December 2021 meeting. Please see below for responses to your queries relating to each SI.

The Sea Fisheries (Amendment etc.) (No.2) Regulations 2021

Discard exemptions

1. Whether the extension, modification, addition and removal of discard exemptions are mirrored at EU level;

The vast majority of discard exemptions in the North Sea and North Western waters are the same in both UK and EU waters in these zones, however, through geographical necessity some exemptions will differ between UK and EU waters in these zones because of the nature of the fleets fishing in particular areas and because of the needs of particular fleet segments. They differed when the UK was still part of the EU (e.g. some exemptions only applied in UK waters in these zones and some only in other Member States’ waters in these zones) however there was a level of consistency among visiting vessels. This remains the case.

2. If the assessments and/or methodology for assessment undertaken by UK scientific agencies and departments (e.g. CEFAS, Marine Scotland) supporting discard exemptions are publicly available.

The findings from Cefas’ assessment of the exemptions for 2022 (and the methodology for undertaking the assessment) has been reviewed by MSS and AFBI, and has not been published yet. They are intending to publish these in early 2022 and are currently going through Defra’s publication approval process.

Multiannual programme for the collection and management of fisheries data

3. How the Scottish Government intends to assess whether or not it is appropriate to maintain alignment with the EU in relation to the multiannual programme of collection and management of fisheries data going forward;

As with other areas which are within scope of the alignment policy, the Scottish Government will review future multiannual data collection and management plans and assess whether maintaining alignment, and to what extent, is both possible and in Scotland’s interests.

Relevant consideration in that regard will include whether it is possible and practicable to maintain alignment, and whether doing so might have disproportionate or undesirable impacts on wider outcomes. A decision to not fully align with the EU legislation may also be reached where alternative but equivalent approaches might deliver the same practical effect in a way more tailored to Scotland’s needs.

It is important to note, however, that even where decisions are made to diverge from administrative, procedural or technical aspects of EU measures, the Scottish Government will seek to align with the same broad, strategic outcomes as the EU. That would include, for example, the overarching outcomes of the Common Fisheries Policy that the multiannual plan sought to deliver.

4. For clarity, to have set out in future SI notifications whether provisions which extend, modify or revoke retained EU law are diverging from or aligning with the approach at EU level to support scrutiny of the Scottish Government’s commitment to maintain alignment with current EU law where appropriate. The Committee asked for this information to be included in future SI notifications (as well as other government documentation) in our letter to you 25 November.

We are considering representations made by the Committee. This sits alongside those made by the Constitution, Europe and External Affairs Committee in their statutory consideration of the Scottish Government’s draft policy statement setting out the approach to use of the power to maintain and advance standards in part one of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021.

Removing the expired closed season for fishing for sandeels

5. In noting the Scottish Government’s reasons for not extending the expired closure of the sandeel fishery, the Committee requests to be kept updated on the progress of additional measures to manage the North Sea sandeel fishery and alert the Committee if UK sandeel quota are to be allocated in 2022 and beyond.

The Scottish Government will ensure that the Parliament is kept informed on both additional management measures and the allocation of sandeel quota in 2022. It should be noted that any additional management measures for the North Sea sandeel fishery will be subject to a formal consultation process. I will provide a written update to the Parliament on the outcome of fisheries negotiations for 2022, once our bilateral with the Faroe Islands has concluded, or at the beginning of February if negotiations remain ongoing. However, this will not include details on the allocation of North Sea sandeel as the catch limit for this stock is set in-year following the publication of scientific advice in February. We will provide a further update on this in due course.

Increasing the amount of seabass that can be landed as bycatch

6. The Committee seeks clarification as to why the SI allows for an increase in the number of seabass that can be landed as bycatch;

The objectives are to further rebalance the discarding/ landing ratio of the existing level of fishing mortality occurring under the current commercial fishing measures under fixed vessel landing limits, in favour of landing. Doing so is aimed at reducing the level of wasted discards by providing additional flexibility to the vessel landing limit derogation in respect of seabass bycatch in fisheries using demersal trawl and seine fishing gear. This features an adjustment to the cap on how much bass can be cumulatively landed under the current 5% of bass in the total species retained on board and landed per fishing trip, from 520kg per two months, to 380kg per month. This was the UK negotiating position for fishing opportunities at the EU consultations for 2021 and was introduced in England and Wales on 10 June 2021.

7. To be provided with an update on how much seabass was discarded under the current exemptions last year and how much the Scottish Government anticipate will be discarded next year.

The data used historic landings and discards to inform the development of this policy and would suggest that landings would be moved, for this fishery, from discards to landings (An analysis of landing and discard data for the trawl and seine fleet which was used to develop this policy is available and is provided in Annex A of this letter). In 2020 ICES predicted that there were 325t of bass discarded at UK-EU level, however, their analysis only uses parts of the fleet (trawls and seine data contributes the vast majority) and is an underestimate of actual levels of discarding. Under this change we predict the increase in trawls and seines landings would move up to 140t from discards into landings without increasing mortality. We have agreed to monitor the effect of these changes on the stock.

Bottom trawling

8. What is the Scottish Government’s view about whether the Regulations would weaken the requirement for bottom trawlers to use selective measures? The Committee would be grateful for clarification on how this aligns with the requirement to deliver National Marine Plan fisheries policy 8;

In our view the Regulations do not weaken the requirement for bottom trawlers to use selective measures, and in fact strengthen the use of selective gear in some places (for example, the continuation of additional selectivity measures for the small mesh fleet fishing in the West of Scotland). The continued delivery of these exemptions under the landing obligation legislation directly supports Fisheries Policy 8 in the National Marine Plan – the exemptions are permitted under the current legislation and support the practical implementation of the landing obligation which is intended to tackle discarding and reduce waste at sea.

9. Further information about when the Scottish Government expects to provide license conditions in Scotland.

I am not clear on the committee’s question, in relation to discard exemptions, the SI is law and as such will be the main implementing instrument rather than licences.

The Wine (Amendment) Regulations 2021

It is regrettable that there was confusion at official level about notification of the Wine (Amendment) Regulations. I can assure the committee that procedures are in place to avoid similar confusion in the future and the officials in question are now aware of the appropriate action to take.

Yours sincerely,

Mairi Gougeon MSP