I was a co-signatory to Tavish Scott's amendment bill. I congratulate him on the bill; I support it, as does the Scottish Conservative party. My intention is only to improve the bill.

Tavish Scott's bill seeks to address a problem that has existed since shellfish aquaculture became popular. The Parliament should actively encourage shellfish growing off the west coast of Scotland. It is an extremely clean and environmentally friendly industry, the product of which is very similar to shellfish that are found in the wild. The product is excellent, and a valuable export, bringing much-needed money and employment to remote areas off the west coast. So far, although around 30 applications for several orders have been made in Scotland, only eight have been granted. That is due mainly to opposition from fishermen who would not be able to continue fishing in their traditional areas.

Tavish Scott's amendment bill would decriminalise creel fishing in several order areas. That would resolve a great deal of the opposition to several orders, and it is therefore vital that we get that decriminalisation right. That is the point of my tiny amendment.

Oysters, king scallops, queenies and mussels can all be grown in west coast bays and sea lochs. They do not require intensive feeding. I do not have to remind the chamber of the problems that scallop growers are having with amnesic shellfish poisoning. It is imperative that the causes of the toxic algal blooms that have been plaguing the west coast of late are discovered.

To grow shellfish, it helps greatly to have a several order for a specific area which prevents types of fishing—such as trawling or dredging—that damage growing shellfish. At the moment, only mid-water fishing with line or net is allowed. However, Tavish Scott's amendment bill will allow the use of static gear, such as lobster, prawn and crab creels, for fishing in those areas.

Many years ago, I fished for lobsters in a small way on Coll, and I know the irritation that creel fishers experience when they are excluded, because of the granting of a several order, from waters that they had previously fished. Some friction has therefore grown up between the shellfish growers and the creel fishers. Tavish Scott's amendment bill will, I hope, bring peace and harmony to the different parties. That is why it is so commendable.

I come now to my reason for wishing to amend slightly the wording of the amendment bill. If the bill goes ahead as it is, creel fishermen must be aware that they will face criminal prosecution if their creels damage the shellfish. It refers to

"an implement of a type specified in the order and so used as not to disturb or injure in any manner shellfish of the description in question."

However, that provision would not protect creel fishermen from the repercussions of accidental damage. Marker buoys mark mussels, which hang on ropes; other shellfish sit on the bottom and it may be difficult to know their exact location. One cannot see the sea bed from a boat.

I know that the Scottish Executive rural affairs department says that the phrase

"knowingly does any of the following things" in the Sea Fisheries (Shellfish) Act 1967, would protect creel fishermen, but I have taken legal advice which disagrees with that view. Members should bear in mind the fact that shellfish growers want creel fishers in the several order areas, because they catch many of the crabs that predate on the young shellfish. The last thing anyone would want is for fishermen to be prosecuted for events that are beyond their control.

A fisherman knowingly—that is the key word—puts a creel over the side of his boat. He has no intention of damaging what is on the sea bed, but he cannot see the sea bed. Accidents could happen for a variety of reasons. For example, if a storm rose and the creels dragged, damage could be caused even if the fisherman was using the equipment in a manner intended not to disturb or injure. He has, however, knowingly used the equipment that has caused the damage.

No matter what precautions fishermen take, some matters are outwith their control. That is why intent must be brought into the question, which is what the amendment seeks to do. Fishermen doing everything in their power to ensure that they did not disturb or injure shellfish might none the less do so for reasons beyond their control. If it were not the fishermen's intention to disturb or injure in any manner a shellfish grower's product, they should not be punished. The amendment would help the very people whom the Sea Fisheries (Shellfish) Amendment (Scotland) Bill is trying to help by showing that fishermen, given that they do not intend to disturb or injure shellfish, are not committing a criminal act.

I repeat that the purpose of Tavish Scott's bill is to decriminalise the activity of creel fishing in several order areas. The amendment intends to aid the decriminalisation of that activity. I hope that members will recognise the importance of changing the wording of the bill and vote for the amendment, which cannot do any harm, and can only improve an excellent bill. The amendment simply clarifies the point; it ensures that those fishermen who knowingly and intentionally disturb or injure shellfish in any way will be prosecuted and that those who do not have such intentions are not punished unnecessarily.

I move amendment 1.

After some careful thought, the SNP has decided not to support Jamie McGrigor's amendment. In a few moments, Tavish Scott will outline the reasons for opposing the amendment and we concur with him.

The Rural Affairs Committee was contacted by 16 organisations regarding the bill and not one raised the point made in the amendment. Jamie McGrigor lodged similar amendments at stage 2, which were withdrawn. I recognise that those amendments were not identical to the amendment that we are discussing today, but they referred to the same point of argument.

The amendment would not make a material difference to the bill, but it introduces some ambiguity, which might lead to legal challenges. Given that the whole purpose of the bill is to avoid legal challenge and unnecessary conflict, we intend to oppose the amendment.

I will speak against the amendment and I want to make a similar point to that made by Richard Lochhead. It is fairly easy to prove damage, but it is very difficult to prove intent to damage. That difficulty could be used as a get-out clause when damage occurred because of carelessness or other activity. Mr McGrigor makes the point that creel fishers might not see the bottom of the sea and that weather conditions and so on could result in unintentional damage. However, I imagine that the fishermen working in the vicinity of the shellfish would have a responsibility not to fish in such circumstances.

When a boat puts out creels it does not sit around and wait to pick them up; it leaves them there overnight and goes back the following day to retrieve them. If a storm got up in that time it is possible that the fisherman would not be able to bring out the boat to retrieve the creels and the damage would be done.

I imagine that the fisherman concerned would consult the weather forecast to find out whether any storms were expected in the vicinity, but that does not detract from the legal argument that intention is difficult to prove. Agreeing to Mr McGrigor's amendment would weaken Tavish Scott's bill, so it should be opposed.

I thank Jamie McGrigor for the comments at the start of his speech, but my reaction to his amendment is broadly as Richard Lochhead and Elaine Murray have described.

There are three objections to the amendment. First, I am not completely convinced by the argument, that the aims of the amendment are already fully dealt with by the word "knowingly" in the Sea Fisheries (Shellfish) Act 1967. Secondly, the argument is that with the amendment the wording would be repetitive—that is unimportant. The third objection is important: it is that the amendment inadvertently—and I believe that it is inadvertent, because I do not think that Mr McGrigor has any other purpose in moving the amendment—weakens a subsection of the Sea Fisheries (Shellfish) Act 1967.

In his opening remarks Mr McGrigor made a point about legal advice. As is always the case, the legal advice cuts both ways. The existing act already allows fishing with nets when

"so used as not to disturb or injure in any manner shellfish".

My bill adds another subsection for creels or whatever, and uses exactly the same phrase:

"so used as not to disturb or injure in any manner shellfish".

Jamie McGrigor's amendment was drafted to add the concept of intention to cause damage so that a fisherman could not be blamed if his creels, landing on the seabed, accidentally damaged a scallop. The aim of the amendment is worthy, although it is arguable whether it is needed.

If the word "intended" is added to the new subsection in my bill, it will be argued that the omission of "intended" from the subsection dealing with nets implies that intention is specifically excluded from that subsection. A fisherman whose net accidentally drops and damages a scallop could be given that legal interpretation.

Jamie McGrigor's well-meaning amendment to protect creel fishermen from a possible, but unlikely, interpretation of the wording of the bill inadvertently leaves net fishermen more vulnerable than they were before. For that reason I ask him to consider withdrawing his amendment. If he decides to put it to a vote, I ask members to oppose the amendment. I do so with some regret, because I believe that the amendment is constructive in motivation, but I regret that what is proposed is unhelpful and will cause a problem while trying to solve what is probably an imaginary problem.

The point of principle has been discussed already in the Rural Affairs Committee. In common with Tavish Scott and members from all parties, the Executive shares Jamie McGrigor's concern that fishermen should not face the threat of prosecution for honest mistakes about the kind of gear that they can use, but our officials and lawyers have carefully considered the amendment and the effect of the net gain of four words to what is a commendably brief bill, again and again. We have come to the conclusion that the amendment would not do anything, except possibly insert some confusion and introduce some potential for mischief in the future.

I refer Parliament to section 7(4) of the act that we are amending, the Sea Fisheries (Shellfish) Act 1967, which includes the word "knowingly", to which Jamie McGrigor referred. The act already carries a specific safeguard to ensure that people cannot be convicted for doing something inadvertently.

If we agreed to the amendment, the provision would say that people commit an offence if they knowingly use banned gear in a way that is intended to damage shellfish. To achieve the purpose of the bill's amendment to the existing legislation, it is sufficient to say that banned gear was knowingly used. I fear that putting intention on top of knowledge will encourage mischievous defence tactics in court. It is sufficient to demonstrate that someone has knowingly used banned equipment in a several order area. I urge the Parliament to reject the amendment.

I have listened to what has been said and I take on board members' feelings. However, I have not changed my view that the amendment would clarify the bill. The word "knowingly" is not enough. It must be shown that people intended to cause damage. A person may knowingly use a piece of equipment without intending to injure or damage.

Well, exactly.

The point that I am trying to clarify—

If somebody were to act carelessly or recklessly in that regard, would it not be the case under the bill as it stands that they would be caught, whereas if the member's amendment were to be applied they would be off the hook, so to speak?

That is a good pun.

The amendment is intended to protect fishermen and to redress the situation. The bill is intended to help fishermen. The amendment is not intended to protect shellfish growers. While I think that shellfish growers should be protected, the amendment would clarify the position—I stick to it on principle.

Mr McGrigor is therefore putting his amendment to the chamber. The question is, that amendment 1 be agreed to. Are we agreed?

Members:

No.

There will be a division.

Division number 1

For: Aitken, Bill, Davidson, Mr David, Douglas-Hamilton, Lord James, Fergusson, Alex, Gallie, Phil, Goldie, Miss Annabel, Harding, Mr Keith, Johnston, Nick, Johnstone, Alex, McGrigor, Mr Jamie, McIntosh, Mrs Lyndsay, Mundell, David, Scanlon, Mary, Scott, John, Tosh, Mr Murray, Wallace, Ben, Young, John
Against: Adam, Brian, Alexander, Ms Wendy, Brown, Robert, Campbell, Colin, Canavan, Dennis, Chisholm, Malcolm, Crawford, Bruce, Cunningham, Roseanna, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Elder, Dorothy-Grace, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Finnie, Ross, Gibson, Mr Kenneth, Gorrie, Donald, Grahame, Christine, Grant, Rhoda, Gray, Iain, Hamilton, Mr Duncan, Harper, Robin, Home Robertson, Mr John, Hyslop, Fiona, Ingram, Mr Adam, Jackson, Dr Sylvia, Jamieson, Cathy, Jenkins, Ian, Livingstone, Marilyn, Lochhead, Richard, MacAskill, Mr Kenny, Macdonald, Lewis, MacKay, Angus, Martin, Paul, Marwick, Tricia, Matheson, Michael, McAllion, Mr John, McConnell, Mr Jack, McGugan, Irene, McMahon, Mr Michael, McNeil, Mr Duncan, Monteith, Mr Brian, Morgan, Alasdair, Morrison, Mr Alasdair, Mulligan, Mrs Mary, Munro, Mr John, Murray, Dr Elaine, Neil, Alex, Peattie, Cathy, Radcliffe, Nora, Robison, Shona, Robson, Euan, Rumbles, Mr Mike, Salmond, Mr Alex, Scott, Tavish, Smith, Elaine, Stephen, Nicol, Sturgeon, Nicola, Swinney, Mr John, Thomson, Elaine, Ullrich, Kay, Wallace, Mr Jim, White, Ms Sandra, Wilson, Allan, Wilson, Andrew

The result of the division is: For 17, Against 66, Abstentions 0.

Amendment 1 disagreed to.