2007 Chapter 12

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These Notes relate to the Aquaculture and Fisheries (Scotland) Act 2007 (asp 12) which received Royal Assent on 5^th April 2007

AQUACULTURE AND FISHERIES (SCOTLAND) ACT 2007

EXPLANATORY NOTES

INTRODUCTION

1.     These Explanatory Notes have been prepared by the Scottish Executive in order to assist the reader of the Act. They do not form part of the Act and have not been endorsed by the Parliament.

2.     The Notes should be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or schedule, or a part of a section or schedule, does not seem to require any explanation or comment, none is given.

DEFINITIONS

"the Act" means the Aquaculture and Fisheries (Scotland) Act 2007 (asp12)

"the 1937 Act" means the Diseases of Fish Act 1937 (c.33)

"the 1967 Act" means the Sea Fish (Conservation) Act 1967 (c.84)

"the 1981 Act" means the Fisheries Act 1981 (c.29)

"the 1983 Act" means the Diseases of Fish Act 1983 (c.30)

"the 2003 Act" means the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 (asp 15)

THE ACT

3.     The Act is in 6 parts. Part 1 provides a series of information gathering, inspection and enforcement measures aimed at controlling parasites on fish farms and shellfish farms and at improving, in respect of fish farms only, the containment of, prevention of escape of, and recovery of escaped, fish. It also provides a power for the Scottish Ministers to approve a code of practice giving guidance and promoting desirable practices in respect of (a) the prevention, control and reduction of parasites on fish farms and shellfish farms and (b) in respect of fish farms only, the containment of, prevention of escape of, and recovery of escaped, fish.

4.     Part 2 provides powers for the containment and treatment of the disease causing parasite of salmon Gyrodactylus salaris, should it be introduced into Scotland. These include powers to create barriers to the movement of fish, to purchase land compulsorily for the purpose of doing so; to maintain, remove and dismantle any such barriers; and to treat waterways with chemical agents.

5.     Part 3 provides a series of measures in respect of salmon and freshwater fisheries.

6.     Part 4 brings in a system of administrative penalties for certain sea fisheries offences, amends the Sea Fisheries (Shellfish) Act 1967 to change the provisions for regulating a fishery and makes an amendment to section 30(1) of the Fisheries Act 1981.

7.     Part 5 provides a series of miscellaneous measures: the regulation of the movement of live fish with a view to preventing the spread of fish diseases; a discretionary power for the Scottish Ministers to make payments in certain circumstances; and the provision of certain information about fish farming and shellfish farming.

8.     Part 6 makes provision in respect of the application of the Act to the Crown; concerning offences by bodies corporate; in respect of minor and consequential amendments; for the making of ancillary provisions by order; for the exercise of powers conferred by the Act by statutory instrument; in respect of interpretation of the Act; and for commencement of provisions of the Act.

9.     The schedule to the Act contains minor and consequential amendments to other enactments.

PART 1: FISH FARMS AND SHELLFISH FARMS

Information

Section 1 - Information about fish farms and shellfish farms

10.     Subsection (1) of section 1 enables the Scottish Ministers to make an order for the purpose of obtaining information in relation to the prevention, control and reduction of parasites on fish farms and on shellfish farms. Subsection (3) enables the Scottish Ministers to make an order for the purpose of obtaining information, in respect of fish farms only, in relation to the containment of fish, prevention of escape of fish, and recovery of escaped fish. The power to make orders under subsections (1) and (3) of section 1 must be exercised by statutory instrument which is subject to annulment in pursuance of a resolution of the Scottish Parliament, by virtue of section 43 (Orders).

11.     Subsections (2) and (4) of section 1 provide that orders under subsections (1) and (3) may require any person carrying on a business to which the order applies to provide such information as may be specified in the order; to compile such records as may be specified in the order; and to retain such records for such period as is specified in the order, subject to a three year maximum. Subsection (5) of section 1 provides that an inspector may require the production of any record which a person is required to retain by virtue of an order under subsection (1) or (3), and may inspect or take copies of any such records. By virtue of section 12 (Interpretation: Part 1) an inspector is a person authorised by the Scottish Ministers to act as an inspector under the Act, whether generally or for a particular purpose. Section 11(1) (Offences: general) makes it an offence to fail to comply with a requirement imposed by an inspector under subsection (5) of section 1.

Section 2 - Information: offences

12.     Section 2 provides that it is an offence for a person to fail to comply, without reasonable excuse, with a requirement of an order made under subsections (1) or (3) of section 1; to knowingly provide information, or to compile a record, which is false in a material particular; or to knowingly alter a record so that it becomes false in a material particular. A person found guilty of committing any of these offences is liable to a fine not exceeding level 4 on the standard scale. This currently equates to a maximum fine of £2,500.

Parasites

Section 3 - Inspections: parasites

13.     Section 3 provides for an inspector to carry out inspections of fish farms and shellfish farms for the purposes of ascertaining the levels (if any) of parasites and assessing the measures in place for the prevention, control and reduction of parasites. By virtue of section 12 (Interpretation: Part 1) an inspector is a person authorised by the Scottish Ministers to act as an inspector under the Act whether generally or for a particular purpose. Subsection (3) of section 3 provides that such inspections may include the taking of samples (including samples of or from fish and shellfish), the examination of documents or records, and the taking of copies of such documents or records. Subsection (4) of section 3 permits inspectors to arrange the carrying out of tests on samples taken during an inspection carried out under subsection (1). The tests that may be carried out are those which the inspector considers necessary for the purpose of ascertaining the levels (if any) of parasites and assessing the measures in place for the prevention, control and reduction of parasites.

Section 4 - Meaning of parasite in Part 1

14.     Subsection (1) of section 4 defines "parasite" for the purposes of Part 1 of the Act as meaning Caligus elongatus and Lepeophtheirus salmonis, two species of sea lice that affect salmon on farms and in the wild. Subsection (2) enables the Scottish Ministers to modify the meaning of the term "parasite" in subsection (1) for the purposes of Part 1 by making an order. This would allow the provisions of Part 1 in respect of parasites to be exercised in respect of such other species of parasite as an order specifies are to be included within the meaning of the term "parasite". The power to make such an order under subsection (2) of section 4 must be exercised by statutory instrument which is subject to annulment in pursuance of a resolution of the Scottish Parliament by virtue of section 43 (Orders).

Containment and escape: fish

Section 5 - Inspections: containment and escape of fish

15.     Subsections (1) and (2) of section 5 provide for an inspector to carry out inspections of fish farms only, for the purposes of ascertaining the risk of escape of fish, and whether fish have escaped, from the fish farm. Such inspections may also be carried out for the purpose of assessing the measures in place for the containment of fish on the fish farm (for example the condition of equipment, such as netting or cages), the measures in place for preventing the escape of fish from the fish farm (for example the regime in place for maintaining equipment, working practices, and the appropriate provision of staff training), and the measures in place for the recovery of any fish which may escape from the fish farm (for example, the availability of suitable nets on the fish farm). Subsection (3) of section 5 provides that inspections under subsection (1) may include the taking of samples (including samples of equipment), the examination of documents or records, and the taking of copies of such documents or records. Subsection (4) of section 5 permits inspectors to arrange the carrying out of tests on samples taken during an inspection carried out under subsection (1). The tests that may be carried out are those which the inspector considers necessary for the purpose of ascertaining the risk of escape of fish from the fish farm; ascertaining whether fish have escaped from the fish farm; and assessing the measures in place for the containment of fish on the fish farm, the measures in place for preventing the escape of fish from the fish farm, and the measures in place for the recovery of any fish which may escape from the fish farm.

Enforcement

Section 6 - Enforcement notices

16.     Subsections (1) and (2) of section 6 provide that the Scottish Ministers may serve an enforcement notice on a person carrying on a business of fish farming in cases where they are satisfied that that person does not have in place satisfactory measures for the purposes of the prevention, control and reduction of parasites or the containment of fish, prevention of escape of fish, or recovery of escaped fish. Subsection (4) provides that such an enforcement notice may require the person on whom the enforcement notice is served to execute such works and take such other steps as Ministers consider necessary for the purposes of the prevention, control and reduction of parasites or the containment of fish, prevention of escape of fish, or recovery of escaped fish.

17.     Subsection (3) provides that the Scottish Ministers may serve an enforcement notice on a person carrying on a business of shellfish farming in cases where they are satisfied that that person does not have in place satisfactory measures for the purpose of the prevention, control and reduction of parasites in respect of the shellfish farm. Subsection (5) provides that such an enforcement notice may require the person on whom the enforcement notice is served to execute such works and take such other steps as Ministers consider necessary for the purpose of the prevention, control and reduction of parasites.

18.     Subsection (6) requires that an enforcement notice, whether served under subsection (1) or subsection (3), must specify the date by which the requirements specified in the enforcement notice must be fulfilled. Subsection (7) provides that a person on whom an enforcement notice has been served may appeal to the sheriff against the notice, by summary application made before the end of a 7 day period beginning with the day on which the notice is served. Subsection (8) provides that the sheriff may decide any appeal as the sheriff sees fit, and that the decision of the sheriff in the appeal is final. Subsection (9) provides that a person who contravenes an enforcement notice without reasonable excuse is guilty of an offence. Subsection (10) provides that a person who is found guilty of committing such an offence is liable to a fine not exceeding level 4 on the standard scale. This currently equates to a maximum fine of £2,500.

19.     Subsection (11) provides that where the Scottish Ministers are satisfied that an enforcement notice is contravened in respect of the prevention, control and reduction of parasites they may authorise an inspector to take any action that Ministers consider necessary to fulfil the requirements of the enforcement notice. Subsection (12) provides for the recovery of expenses reasonably incurred by an inspector in taking action authorised by the Scottish Ministers to fulfil the requirements of the enforcement notice.

20.     Subsection (13) permits the serving of an enforcement notice to be publicised as widely, in such manner and in such form as the Scottish Ministers think fit.

Code of practice

Section 7 - Code of practice

21.     Section 7 enables the Scottish Ministers to approve, by order, all or part of a code of practice (whether issued by them or by any other person) for the purposes of giving guidance and promoting desirable practices in respect of (a) the prevention, control and reduction of parasites on fish farms and shellfish farms and (b) in respect of fish farms only, the containment of fish, prevention of escape of fish, and recovery of escaped fish. Subsection (3) enables the Scottish Ministers, by order, to modify an approved code or to withdraw approval of an approved code or an approved modification of such a code

22.     The term "approved code" is defined in section 12 (Interpretation: Part 1) for the purposes of Part 1 of the Act as meaning a code of practice approved under section 7, including any part or modification of an approved code of practice. The power to make orders under subsections (1) and (3) of section 7 approving a code, or modifying a code, or withdrawing approval of an approved code or an approved modification of such a code must be exercised by statutory instrument which is subject to annulment in pursuance of a resolution of the Scottish Parliament, by virtue of section 43 (Orders). Subsection (4) of section 7 requires the Scottish Ministers to consult such persons as they consider appropriate before making such an order.

Section 8 - Monitoring and enforcement: code of practice

23.     Subsection (1) of section 8 imposes an obligation upon the Scottish Ministers to monitor compliance with any code approved by them under section 7.

24.     Subsections (2) and (3) of section 8 provide that the Scottish Ministers may serve a notice on a person carrying on a business of fish farming or shellfish farming where they are satisfied that that person is not complying, or is not likely to comply, with a code approved under section 7 (Code of practice) in a material regard. Such a notice may require the person on whom the notice is served to execute such works and take such other steps as Ministers consider necessary for securing compliance with the approved code in any particular respect (subsection (4)).

25.     Subsection (5) of section 8 applies the provisions of subsections (6) to (13) of section 6 (Enforcement notices) to a notice served under subsections (2) and (3) of section 8 in the same way as they apply to enforcement notices served under section 6. Accordingly, notices served under subsections (2) and (3) of section 8 must specify the date by which the requirements specified in them must be fulfilled (section 6(6), as applied); there is a right of appeal against a notice by summary application to the sheriff (section 6(7) and (8), as applied); a person who contravenes a notice served under subsection (2) or (3) of section 8 is guilty of an offence (section 6(9), as applied); a person who is found guilty of committing such an offence is liable to a fine not exceeding level 4 on the standard scale, which currently equates to a maximum fine of £2,500 (section 6(10) , as applied); where the Scottish Ministers are satisfied that a notice served under subsection (2) or (3) of section 8 is contravened in respect of the prevention, control and reduction of parasites they may authorise an inspector to take any action that Ministers consider necessary to fulfil the requirements of the notice (section 6(11), as applied); expenses reasonably incurred by an inspector in taking action authorised by the Scottish Ministers to fulfil the requirements of such a notice may be recovered by the Scottish Ministers from the person upon whom the notice was served (section 6(12), as applied); the serving of a notice under subsection (2) or (3) of section 8 may be publicised as widely, in such manner and in such form as the Scottish Ministers think fit (section 6(13), as applied).

Powers of inspectors and offences

Section 9 - Powers of inspectors: entry

26.     Subsection (1) of section 9 provides that an inspector may enter any fish farm or shellfish farm for the purpose of ascertaining whether any power conferred on the inspector under Part 1 of the Act should be exercised and for the purpose of the inspector doing anything in pursuance of the exercise of that power. Subsection (2) requires an inspector entering a fish farm or shellfish farm under the power of entry bestowed by subsection (1) to produce evidence of the inspector's authority to act as an inspector, namely the authorisation to act as an inspector given by the Scottish Ministers (see the definition of the term "inspector" given in section 12 (Interpretation: Part 1) for the purposes of Part 1). Subsection (3) requires that any power of entry conferred on an inspector by or under Part 1 of the Act must be exercised at a reasonable hour, unless the inspector considers the case is an urgent one.

Section 10 - Entry: supplementary

27.     Subsection (1) of section 10 applies section 10 to any inspector exercising any power of entry conferred on that inspector by or under Part 1 of the Act. Subsection (2) provides that such an inspector may take with that inspector any other persons and any equipment and vehicles which the inspector considers necessary. Subsections (3) and (4) provide that an inspector may require reasonable assistance to be provided to the inspector by the person who carries on the business of fish farming or shellfish farming; by any other person appearing to the inspector to be under the direction or control of the person who carries on the business of fish farming or shellfish farming; and by any other person who appears to that inspector to be concerned with the operation of the fish farm or shellfish farm. Section 11(1) (Offences: general) makes it an offence to fail to comply with a requirement imposed by an inspector under subsection (3) of section 10.

Section 11 - Offences: general

28.     Subsection (1) of section 11 provides that it is an offence for a person to fail, without reasonable excuse, to comply with a requirement imposed by an inspector by virtue of Part 1 of the Act or to obstruct an inspector in the exercise of the inspector's powers under that Part. Accordingly, this is the provision which makes it an offence for a person to fail to comply with a requirement imposed by an inspector under section 1(5) (Information about fish farms and shellfish farms) and section 10(3) (Entry: supplementary).

Interpretation of Part 1

Section 12 - Interpretation: Part 1

29.     This section provides definitions for certain terms used in Part 1 of the Act.

PART 2: GYRODACTYLUS SALARIS: CONTAINMENT AND TREATMENT

30.     This Part of the Act makes provision in relation to the containment and treatment of Gyrodactylus salaris should this parasite of salmon be introduced into Scotland.

Order under section 2 of the 1937 Act: additional powers

Section 13 - Order under section 2 of the 1937 Act: additional powers

31.     Section 13 inserts section 2ZA into the 1937 Act. Section 2 (Power to designate areas) of the 1937 Act enables Ministers, where they have reasonable grounds for suspecting that certain waters are or may become "infected waters" (as that term is defined in section 10 (Interpretation) of the 1937 Act) to make an order designating those waters and such adjacent land as Ministers consider appropriate. Such an area is known in section 2 of the 1937 Act as a "designated area". Under section 2 of the 1937 Act, in respect of a designated area Ministers may prohibit or regulate the taking into or out of the designated area of live fish and live fish eggs and foodstuff of fish and regulate movement of those things within the designated area. New section 2ZA provides additional powers where Ministers designate an area under section 2 of the 1937 Act where they suspect that the waters are or may become infected waters by reason of the presence of the parasite Gyrodactylus salaris.

32.     These additional powers include prohibiting the taking into or out of the designated area by any person, other than an inspector or other person exercising functions by arrangement with the Scottish Ministers in relation to the 1937 Act, of any vehicle, or description of vehicle, and such equipment, material or substance not falling within section 2(2)(a) of the 1937 Act (i.e. live fish, live eggs of fish and foodstuff of fish) as may be specified in the order designating the area, unless the vehicle, equipment, material or substance concerned is subjected to a specified process of disinfection immediately before being taken in to or, as the case me be, out of the designated area (new section 2ZA(a)). These additional powers also include prohibiting or regulating the taking into or out of the designated area of dead fish (section 2ZA(b)) and regulating entry to and exit from the designated area (section 2ZA(c)).

Preliminary designation of area by order

Section 14 - Preliminary designation of area by order

33.     Section 2 of the 1937 Act permits an order to be made only in relation to waters which the Scottish Ministers have reasonable grounds for suspecting are, or may become, infected waters. Section 14 inserts section 2ZB into the 1937 Act immediately after section 2ZA (inserted by section 13 of the Act). Section 2ZB(1) provides that if at any time the Scottish Ministers have reasonable grounds for suspecting that any of the inland waters of, or marine waters adjacent to, the United Kingdom (the terms "inland waters" and "marine water adjacent to the United Kingdom" are defined for the purposes of section 2ZB(1) in section 2ZB(6)) are "infected waters" (as that term is defined in section 10 of the 1937 Act) by reason of the presence of the parasite Gyrodactylus salaris, they may by order made by statutory instrument designate such part, or all, of the inland waters of Scotland and the marine waters adjacent to Scotland (as defined by section 2ZB(6)) as they consider appropriate. The power is triggered where the Scottish Ministers have reasonable grounds for suspecting that any of the marine or inland waters of the United Kingdom are "infected waters" by reason of the presence of the parasite Gyrodactylus salaris, and does not require that they have grounds to believe that the particular Scottish waters to be designated are at specific risk of infection. The purpose of a designation under section 2ZB(1) is to impose temporary measures to limit the spread of infection while the scale of any outbreak, and thus the need for designations under section 2 of the 1937 Act, can be assessed. So, were the Scottish Ministers to learn of a suspected outbreak of Gyrodactylus salaris in waters in England, for example, they would be able to use section 2ZB(1) to impose restrictions upon Scottish waters while the scale of the outbreak was investigated.

34.     Section 2ZB(2) provides that an order under section 2ZB(1) designating an area may also prohibit or regulate the taking into or out of the area designated such live fish, live fish eggs and foodstuff of fish (or such description of those things) as may be specified in the order and regulate the movement within the area designated of such of those things (or description of things) as may be specified in the order until the expiry of the period of thirty days from the day the order was made.

35.     Section 2ZB(3) provides for the making of a further order, before the expiry of the thirty day period relating to an order under section 2ZB(1), extending the effect of the first order for a further period of thirty days from the day upon which it would otherwise have ceased to have effect.

36.     Section 2ZB(4) provides that such orders, whether made under section 2ZB(1) or (3) are to be made by statutory instrument which is to be laid before the Scottish Parliament.

37.     Section 2ZB(5) makes it an offence for any person to intentionally contravene any provision of an order made under either section 2ZB(1) or (3).

Containment and treatment: additional powers

Section 15 - Creation of barriers to movement of fish, treatment of waters with chemical agents etc.

38.     Section 15 inserts two new sections into the 1937 Act, conferring additional powers for the containment and eradication of the parasite Gyrodactylus salaris.

39.     Inserted section 5A of the 1937 Act makes provision for the creation of barriers to the movement of fish. Subsection (1) of section 5A provides that the Scottish Ministers may arrange for the creation of barriers to the movement of fish in any inland waters (as defined in section 2ZB(6) of that Act) for the purposes of preventing the spread of the parasite Gyrodactylus salaris or of facilitating treatment with chemical agents with a view to eradicating the parasite from the waters concerned. The term 'creation of barriers' includes the closure or alteration of any means for the passage of salmon through, round or over dams, lades or water wheels. A barrier can prevent the spread of the parasite into waters lying upstream of the barrier by preventing the upstream migration of fish of species which might act as hosts for the parasite. In the case of chemical treatment (authorised by section 5B of the 1937 Act, which is also inserted by this section of the Act), the creation of a barrier would enable chemical treatment to be administered to a restricted part of a watercourse rather than having to be applied to the whole watercourse, the area downstream of a barrier being treated with chemical agents.

40.      Subsection (2) of inserted section 5A of the 1937 Act provides that the power to arrange for the creation of barriers shall include power to maintain, dismantle and remove the barriers, and subsection (3) provides that the Scottish Ministers may purchase land compulsorily for the purpose of enabling them to create barriers. Compulsory purchase would follow the standard procedure set out in Schedule 1 to the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947. Paragraph 2 of the schedule to the Act amends section 1(1) of the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 to provide for the application of schedule 1 of that Act to acquisitions under section 5A(3) of the 1937 Act.

41.     Inserted section 5B of the 1937 Act provides for the Scottish Ministers to arrange for the treatment with chemical agents of any waters which have been designated by an order under section 2 of that Act (Power to designate areas) in relation to Gyrodactylus salaris with a view to eradicating the parasite. The power would be exercised only after consultation aimed at those who might be affected by the chemical treatment of the waters concerned, and after having obtained all necessary statutory permissions (for instance under the Water Environment (Controlled Activities) (Scotland) Regulations 2005).