Marine Scotland derogation conditions: EIR release

Information requested

The derogation to fish for wild wrasse 2025 contains within its conditions the following clause 26.

"26. The activity authorised through this derogation does not extend to any individual (including master, owner, applicant, crew or the charterer (if any)) that has been convicted of any fisheries offence, or received a Fixed Penalty Notice for an offence(s) falling within the most serious categories (level 4 and above), within the last 36 months.

Do any other Marine Scotland derogations (past or present) feature similar conditions which restrict individuals that have been convicted to fisheries offences from working as crew on vessels engages in the activity authorised through the derogation. If so please provide a list of these derogations.

Response

As the information you have requested is ‘environmental information’ for the purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs), we are required to deal with your request under those Regulations. We are applying the exemption at section 39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA), so that we do not also have to deal with your request under FOISA.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption, because there is no public interest in dealing with the same request under two different regimes. This is essentially a technical point and has no material effect on the outcome of your request.

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have the information you have requested. Therefore we are refusing your request under the exception at regulation 10(4)(a) of the EIRs. The reasons why that exception applies are explained below.

Under the terms of the exception at regulation 10(4)(a) of the EIRs (information not held), the Scottish Government is not required to provide information which it does not have. The Scottish Government does not have the information you have requested because clause 26 within the 2025 wild wrasse fishing derogation is a bespoke condition which currently applies only to the wrasse fishery.

This exception is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. We have found that, on balance, the public interest lies in favour of upholding the exception.

While we recognise that there may be some public interest in information about wild wrasse fishery derogation conditions, clearly we cannot provide information which we do not hold.

Under regulation 9 of the EIRs (our duty to provide advice and assistance) we would like to advise you that all sea fishing licences are granted at the discretion of Scottish Ministers, who hold statutory powers over variations, suspensions, or revocations to these commercial licences, and that the wrasse fishery is not an ‘open fishery’ in that the Marine Directorate of the Scottish Government controls access to it through a specific application process. The derogation that you refer to is an additional permission granted over and above the domestic fishing licence, which gives a limited number of fishers the authorisation to carry out activities that are otherwise illegal (targeted fishing for wrasse species in the Scottish waters) over a set (seasonal) period.

In managing access to this fishery the Marine Directorate must adhere to the principles of sustainable development, seeking to achieve a credible balance between economic opportunity and environmental conservation. To be effective in ensuring environmental conservation, we need to ensure strict compliance with the conditions attached to the derogations.

The Scottish Ministers have a wide discretion when using their sea fishing licensing powers under Schedule 3 of the Fisheries Act 2020. Moreover, Ministers are obliged to ensure that serious infringements are punishable by effective, proportionate and dissuasive administrative sanctions, which can be imposed in addition to or as an alternative to criminal sanctions.

Condition 26 of the rules governing the 2025 wrasse fishery, is a bespoke condition which currently applies only to the wrasse fishery. However, compliance with rules and regulations is an important factor for Ministers to consider when exercising their sea fishing licensing powers. We have for example excluded fishers from participating in the razor clam trial due to a failure to comply with the rules.

The new condition was not present in the 2025 application for derogation which was issued by Marine Directorate in late April 2025, the application process was clear that the terms of the  derogation were being reviewed and, as set out above, we reserve the right to amend the conditions of the fishery as necessary for its appropriate and legitimate management.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.