Ministers to Ministers

I refer to your letters of 19 September and 9 November last year. I am sorry not to have responded sooner.

May I first congratulate you on developing an exciting set of proposals. As you know, we are taking forward in Scotland a number of marine environment initiatives that help us achieve our aims of protecting our natural environment and promoting a successful and sustainable fishing industry. I am delighted to work with you on the specific proposal in Arran.

The attached statement sets out the background and formally responds to your proposal. You have asked Scottish Ministers to use statutory powers to introduce legally binding restrictions on fishing activity in Lamlash Bay, and have argued that the proposal could contribute to Scottish Executive objectives. Furthermore, you both recognise and are willing to contribute to the range of policy initiatives which are being implemented in the Clyde area, including the Clyde Forum, and the Scottish Sustainable Marine Environment Initiative. You may also be aware that we will shortly have in place an Inshore Fisheries Group for the Clyde, who will take on an increasing role for local fisheries management under the broad framework of our Inshore Fisheries policy. I would expect COAST to be a key stakeholder in these initiatives, which represent the appropriate forum to take forward the proposals.

While I am very sympathetic to your proposal, we may not need to resort to statutory measures. There is a risk that such measures could cut across our attempts to build a consensual approach to marine nature conservation which at present utilises statutory no take zones in areas which have been designated as a Special Area of Conservation. I understand that local fisheries representatives have indicated their willingness to consider alternative voluntary measures. My strong preference would be to achieve a more positive outcome by ensuring the support of a wider range of interests. This would help implement the proposal to contribute to marine environment protection outwith the priority areas designated as Special Areas of Conservation.

I have therefore asked senior officials in the Department to facilitate further discussions with you and local fisheries interests to explore the proposal further and consider mechanisms for taking them forward within the framework of our new approach to the Coastal and Marine Environment and Inshore Fisheries Management. I would certainly expect that the forthcoming Clyde IFG would give early consideration to the COAST proposals.

Following those discussions, I would be pleased to meet you again to discuss the next steps.

APPENDIX

PROPOSAL FROM THE COMMUNITY OF ARRAN SEABED TRUST (COAST)

1.Scottish Ministers have been asked by COAST to put in place a fisheries no take zone and a mobile gear only zone underpinned by legislation in Lamlash Bay. The Act of Parliament which would be used is the Inshore Fisheries (Scotland) Act 1984, which gives Ministers powers to close a fishery where there is justification to do so.

Policy Background

2. The Scottish Government’s policy for inshore fisheries set out in the Strategic Framework for Inshore Fisheries, published in March 2005. The key element of the framework is the establishment of a network of Inshore Fisheries Groups around the country. These Groups, which will have fishermen at their core, will have the key role in inshore fisheries management in the coming years. The structure of the Groups encourages the involvement of organisations with wider, i.e. beyond fisheries management, functions and responsibilities, NGOs and other stakeholders. It will incumbent on the fishing industry to take account through Inshore Fisheries Groups of the responsibilities and aspirations of these wider organisations and stakeholders as they go about the business of managing the fishery.

3. The Scottish Government’s approach to nature conservation and the wider marine environment is set out in our Coastal and Marine Strategy – Seas the Change published in September 2005. Decisions on the use of statutory powers of Fisheries management need to take account of their international obligation and their other commitments and requirements, and it needs to recognise responsibilities, aims and aspirations of a wide range of sectors and stakeholders.

4. No take zones and restricted fishing zones have an important role to play as fisheries management measures, in the context of a strategic approach and on the basis of objective criteria the application of which would result in the most appropriate sites or areas being identified. For example, a restriction to help increase or maintain scallop stock levels would have to be put in place in an area where it was clear that tangible benefits would be realised. A closure or prohibition based on a local approach where the case had been established and agreement reached is one option for consideration by Inshore Fisheries Groups.

5. There may also be circumstances when Scottish Ministers utilise the Inshore Fisheries (Scotland) Act 1984 where there are strong nature conservation grounds for doing so. For example, there may be circumstances where there is evidence that fishing is potentially damaging the relevant features of a Special Area of Conservation. The Scottish Governments statutory advisers on nature conservation are Scottish Natural Heritage. While our understanding of the habitat of the area has been greatly enhanced by the work of COAST, SNH have advised that Lamlash Bay does not appear to meet the criteria for selection as a Special Area of Conservation. However, they see scope for addressing concerns about the maerl bed habitat in Lamlash Bay, through the range of marine management initiatives in the Firth of Clyde.

Conclusion

6. In making an Order under the Inshore Fisheries (Scotland) Act 1984 there needs to be justification, and in carrying out statutory functions, Ministers are required to be acting appropriately and reasonably. In the instance of the COAST proposals there is no case for preventing or restricting fishing in the area in question from a fisheries management standpoint, and, as has been confirmed by the Executive’s statutory nature conservation advisers (SNH), the area in question does not merit statutory marine nature conservation designation. This points to the conclusion that there is insufficient justification to agree to COAST’s request and indeed that the Executive would, if it did agree to the request, be vulnerable to a legal challenge of its actions.

The Scottish Executive

Environment and Rural Affairs Department. These Appendix were received on 22nd June 2006.