Section 5 - Consultation objectives
5.1 While the majority of the recommendations of the Task Force are the subject of this consultation Marine Scotland Compliance have already directed significant resources in an immediate response to recommendation 5. This has resulted in valuable additional information.
Operations Spinner and Fly
Task Force Recommendation 5
5.2 Marine Scotland Compliance undertook operations from the end of August until the end of September 2014, investigating gear conflict issues, at a cost of around £200,000. As part of these operations, Marine Scotland Compliance Officers interviewed the skippers of static and mobile gear vessels fishing around the east coast of Scotland. A total of 57 East Coast skippers took part in the interviews, representing 34 static and 23 mobile gear vessels.
5.3 Skippers were asked questions about how they liaise with each other in relation to gear placement. The responses showed that:
- Most static gear vessels did not advise mobile gear vessels about the locations of their gear, and just under half advised the local Fishery Office. In both cases, this tended to be due to their placing gear within 2nm of the shore, and so they did not find it necessary to make contact.
- Just over half of mobile gear vessels made enquiries or had been contacted about the locations of static gear in the area they were fishing in, with those not doing so working further off-shore. Contact tended to be directly with local skippers or via their fishermen's association, rather than going through the local fishery office.
5.4 There was general agreement that communication could be better between the two sectors, despite there being a number of methods available (VHF, mobile phones, email etc.), and that improvements could be useful in helping to avoid gear conflict.
5.5 The suggestion of a website or similar system was popular, with most skippers saying they would use one if it was made available. While several features were suggested (such as being able to enter and check the locations of creels, or to check when mobile vessels would be passing through an area) the main requirement was that such a system would need to be kept updated in order to be useful.
5.6 While just under half of static gear vessels said that they had suffered damage to gear at some point, three-quarters had not encountered any problems in the past few years. Those that had not encountered problems tended to be those who placed their gear within 2nm of the shore.
5.7 All static gear vessels said they clearly marked their gear. This was usually done with buoys (often with the vessel name and/or PLN written on them), flags or a combination of both.
Options for resolution
5.8 Marine Scotland has a responsibility to apply policies that are balanced and proportionate. The aim of this section is to highlight the areas we think need to be considered to improve policy on gear conflict. Perhaps the biggest question is in relation to the Task Force's recommendation 2; that is, whether Marine Scotland should take a more direct role in managing gear conflict. The primary role for enforcing common law offences rests clearly with Police Scotland but given that the offences relate to fishing there is an opportunity for Marine Scotland to consider taking a lead. This could be through introducing fisheries management measures such as vessel location reporting.
5.9 Potential options for responding to the Task Force recommendations are complementary to provisions already applied in fisheries management. The options set out in this section are suggestions for what could become part of a formal framework for good governance.
- Spatial management
- Marking of gear
- An administrative sanction (Polluter Pays Principle)
- Codes of Conduct
- Securing better evidence through technology
APPLYING SPATIAL MANAGEMENT
Task Force Recommendation 3
5.10 Some mobile fishermen believe the only way to reduce gear conflict is to introduce spatial separation between mobile and static activities. Fishermen emphasise that there are already different spatial requirements in different areas of the country. While it is not current policy to introduce spatial separation on the basis of gear conflict alone, Scottish Ministers will respond to requests from local inshore stakeholders.
5.11 Spatial separation can, on the face of it, appear a blunt tool to deal with gear conflict and may cause displacement. To ensure that spatial management is fair and proportionate it will require a full analysis of the impact on those who fish there.
Measures designed for more effective monitoring and enforcement:
5.12 The regulation of any spatial separation will require appropriate technology.
Question 1: Should spatial management measures be considered to deal with gear conflict?
Question 2: If yes, should spatial separation be considered on a national basis or only in gear conflict "hotspots"?
Question 3: Should appropriate technology be considered to monitor all vessel locations to the degree capable of providing a level of proof to identify gear conflict?
APPLYING BETTER COMMUNICATION
Task Force Recommendation 4
5.13 Better and open exchange of information on fishing operations is key. The output of recent Compliance operations supported the suggestion (point 5.3) that improvements to communication could help resolve conflict in some areas. While there are excellent examples of sharing information around the coast they do not include all the required stakeholder groups. It is important that other agencies such as Police Scotland and the Maritime and Coastguard Agency are involved in this process.
5.14 Such bodies would be required to achieve better buy-in to current informal arrangements or make provisions for enforcement to become a routine element of their business planning. The fishing industry has been supportive of Marine Scotland hosting or facilitating the use of a website to display information on creel locations. Marine Scotland has experience of using electronic monitoring and reporting for fisheries management purposes. Examples include the notification of Juvenile Cod Real Time Closures within the EU stock recovery programme and the notification of variation of fishing licenses; both of these actions are underpinned by a statutory requirement to inform vessel operators.
5.15 Several fishermen have voiced their concern regarding having to disclose their fishing practices to competitors or have been worried about publicising their location of activity, which may make them a target for theft or vandalism. Such open access to fishing activity information may in itself not be a sole solution to resolving the gear conflict issue but may remove the defence of ignorance of another vessel's activities or intentions.
Measures to put in place effective enforcement:
5.16 Equal application of rules to all fishing vessels points towards the requirement for a licence condition or the provision of legislation (via a statutory instrument) seeking to make gear conflict a fisheries offence.
5.17 In order for enforcement to be based on the provision of authorities' information of typical working patterns of both the mobile and static gear fleets within any particular location there would need to be a reference for all fishermen to refer to.
Question 4: Do you support the idea of a centrally/regionally managed website to host information on creel location?
4(a) Would you commit to providing information on creel locations, and for it to be in the public domain?
4(b) Do you believe fishermen would use such a website?
APPLYING THE 'POLLUTER PAYS' PRINCIPLE
Task Force Recommendations 2 and 4
5.18 One option worth exploring is the design and implementation of a non- statutory system that can be operated without putting pressure on the judicial process. This is not intended to replace the powers of Police Scotland for common law enforcement but, rather, to complement them.
5.19 The use of administrative management measures has been successfully used in other areas of fisheries management. In 2006 fisheries managers considered imposing Restricted Area Licensing (RAL) on the pelagic fleet to tackle what was believed to be misreporting of fishing grounds in Area VI and IV in previous years. The introduction of RAL would have removed flexibility for vessels at sea and would have been a significant imposition on the pelagic fleet. The action of a few vessels would have meant blanket measures applying to the whole fleet. This proposal was criticised by the fishing industry as disproportionately punitive and it was not ultimately applied. Instead, from 2006 until the present day the activities of the pelagic fleet have been closely monitored using VMS data.
5.20 Considering the current issue of gear conflict, if a vessel was found to have breached the misreporting rules to the criminal standard then that would continue to be referred to the Crown Office and Procurator Fiscal Service (COPFS) for prosecution. However, if Marine Scotland Compliance obtained evidence that, on the balance of probabilities, a contravention of the law had occurred, it could report the case to an internal panel within Marine Scotland who would consider the report and whether sufficient evidence existed to justify variation of the vessel's Multi Area Licence (potentially becoming a RAL for a fixed period). Clearly there would need to be safeguards build into any such process as the aim would not to be advantage one part of the fleet over another but to have restitution. There would need to be sufficient confidence that a) a vessel was indeed responsible for loss of damage of gear b) that the evidence was genuine and was not spurious accusations or deliberately placed by static fishermen to exclude mobile fishermen c) there would need to be sufficient confidence and verification that the number of creels lost or damaged was genuine. Under this administrative model it would still be possible for a vessel to offer compensation for the loss or damaged gear and for that to be the matter resolved.
5.21 A similar policy could be applied to mobile operators fishing within 12 (6) miles. All vessels could be asked to sign up to a code of conduct with regard to respecting established creel locations. If creels were accidentally taken then they would have to be either returned, given details for retrieval or have compensation offered to them. Provisions would be introduced to restrict the area in which they were licensed to fish. Under such a scenario the onus is not only on the mobile operators, but also on static operators who would have to demonstrate they have made every effort to tag and report the location of gear. Sufficient safeguards would need to be built into any scheme rules to ensure that there were no provocations of gear conflict.
5.22 As with the case of pelagic misreporting it is hope that the threat of a restricted licence would deter vessels from engaging in gear conflict.
Measures to put in place for effective enforcement:
5.23 There are several elements to apply a 'polluter pays' principle:
- Established principles and behaviours;
- Designation of application: zones, boxes;
- Mobile vessel activity monitoring: VMS or AIS;
- Provision of accurate detail on the location of creels;
- Tagging or marking of creel fleets;
- Marine Scotland Compliance to monitor any complaints of loss of gear; and
- Licence variation for vessels that fail to observe good practice.
Question 5: Do you support the introduction of administrative restrictions on vessels who engage in deliberate gear conflict?
Question 6: Do you believe administrative penalties can be effective?
APPLYING VOLUNTARY CODES OF CONDUCT
Task Force Recommendation 1
5.24 Marine Scotland supports non-regulatory intervention wherever possible and codes of conduct can be an effective way of promoting co-operation and good practice between sectors. Codes of conduct work best where fishermen directly affected by them are involved in their development and promotion. The report from the Task Force on Gear Conflict praised the existence of codes but noted that they require the good will of all that fish in that area and that the actions of one rogue can undermine their credibility.
Measures to put in place for effective enforcement
5.25 One option for strengthening codes of conduct is to improve the dissemination of fishing activity information. Codes of conduct are by their very nature voluntary and unless they are enshrined in legislation they are not enforceable. One of the criticisms of codes is that there is no sanction attached to a breach of a code's conduct requirements and therefore no consequences for those that do break the rules of the code.
5.26 If codes are linked to licence conditions in the fishing licence then Marine Scotland Compliance is required to be involved in the enforcement. This could, for example, be linked to the application of the polluter pays principle. The design of any such licence conditions would need the full co-operation and participation of active fishermen as well as their representatives.
5.27 Statutory elements of codes of conduct could include:
- mandatory reporting of creel numbers and locations;
- verification of creel numbers and locations through technology;
- sharing location of creel numbers and locations;
- reporting damage to static gear to UKFCC; and
- strengthening the role of the Fishery Office/local fishing representatives to monitor adherence to conditions set out in the code(s).
Question 7: Would you like to see a national code of conduct on spatial interaction?
Question 8: Would you like to see regional codes of conduct on spatial interaction?
Question 9: What other measures can strengthen codes of conduct?
APPLYING A NEW STANDARD FOR MARKING OF GEAR
Task Force Recommendation 2
5.28 The detailed rules on the marking of passive fishing gear are set out in Article 9 of Commission Regulation 404/2011. However, these rules only apply outside 12 nautical miles. In the discussions leading to the introduction of the Control Regulations 1224/2009 Marine Scotland pursued a policy, informed by industry, of not applying the same rules outside and inside 12 nm. It was argued by industry representatives that the rules were onerous, expensive, and unsafe for small vessels inside 12 nm. Additionally there are concerns about the durability of tags and markings in certain tidal waters.
5.29 As part of the preparatory investigation for this consultation Marine Scotland Compliance undertook surveillance and monitoring exercises around the Scottish coast to better understand gear interaction. The results of those operations indicated that there was a considerable difference in the quality of gear marking.
5.30 Stringent marking of gear inside 12 nm will make static gear more visible to mobile vessels. Some static fishermen are however concerned that visible marking will leave them at risk to deliberate acts of vandalism or theft. There is a balance to be struck here and Marine Scotland is keen to consult openly on improving the marking of gear inside 12 nm.
Measures to put in place for effective enforcement
5.31 Any changes to the rules on the marking of gear within 12 nm must apply equally to licensed and unlicensed vessels. The issue of unlicensed hobby fishermen will be the subject of a separate consultation and there is potential for joint development of fisheries policy within this area. Comments are welcomed on the basis that any gear in the sea should be appropriately marked to reduce potential for gear conflict, whether with commercial fishing, merchant or leisure craft.
5.32 Marine Scotland Compliance will need to take enforcement action on gear that is not appropriately marked. This will require significant resource.
Question 10: Do you believe there should be prescriptive rules about the marking of gear within 12 nm?
10 (a) If so, what should they be?
Question 11: Should these measures be extended to all fishing vessels, including unlicensed operators?
APPLYING A BETTER EVIDENTIAL STANDARD
Task Force Recommendations 1, 2 and 4
5.33 It is challenging to secure the necessary evidence standard for Police Scotland to act if a common law offence (theft or vandalism) has occurred. In order to have better evidence we will need to establish whether creels have been removed / displaced, and if the vessel is likely to have been fishing in the area. In order to provide better information there needs to be an increase in the reporting of creel locations and vessel location. Currently VMS only applies to vessels of 12 metre overall and longer. Therefore the options to consider are:
- Full extension of VMS to vessels below 12 metres, with the possibility of an increased "ping" rate;
- Greater application of AIS and reporting of gear location;
- Potential declaration and formal reporting of areas cleared of static gear on a seasonal basis (seasonal closures); and
- Mandatory tagging of creels to identify the owner.
5.34 All of these options put a cost burden onto fishermen and the extension of any current legal requirements needs to be carefully thought through.
5.35 VMS units cost approximately £1500. There are also associated warranty and transmission costs to factor in. Current Control Regulation provisions also stipulate that transmission needs to be on a two hourly basis, by satellite, and that a vessel cannot leave port for a trip unless it has a fully functional unit. Two hourly position reports do not provide sufficient data for inshore activities. VMS is first and foremost a control tool, and is covered by data protection agreements. Extending technology to vessels on a statutory basis will need to be underpinned by a statutory instrument and the impact of data protection will need to be addressed.
5.36 Technology appears to feature in a wide range of measures to address gear conflict.
Measures to put in place for effective enforcement
5.37 To inform what kind of technology is appropriate in the inshore environment the following should be considered:
- There are data protection issues to consider if applying VMS to vessels under 12 metres;
- Marine Scotland will require greater monitoring;
- AIS is not tamper proof (that is, it can be switched off);
- Greater detail is required on fishing location;
- It does not apply to unlicensed fishermen; and
- Proportionality of applying technology to smaller vessels.
Question 12: Do you support the introduction of some kind of vessel tracking system for under 12 metre vessels?
Question 13: Do you have any comments on the type of system which could be introduced?
Question 14: Do you support the introduction of creel tagging and mandatory reporting of creel locations?
Question 15: Do you have any other comments to make regarding measures to tackle gear conflict?