Section 7 — Code of practice

Aquaculture and Fisheries (Scotland) Bill: Stage 3 – in the Scottish Parliament at 2:56 pm on 1st March 2007.

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Photo of Murray Tosh Murray Tosh Conservative 2:56 pm, 1st March 2007

The first group of amendments is on the code of practice: unused fish farm sites. Amendment 14, in the name of Rob Gibson, is the only amendment in the group.

Photo of Rob Gibson Rob Gibson Scottish National Party

During stage 2, I raised the question of the way in which the approved code of conduct would act in terms of fish farms. That is a core element of part 1 of the bill. There is a need for clarity about the tenure of fish farm leases and about fish farm planning permissions that will follow.

Through a freedom of information request, I found out that, of the 252 salmon leases that were established by the Crown Estate, in 2004 121 reported nil production, in 2005 the figure was 126 and in 2006 it was 140. Indeed, 67 leases reported nil production for the period 2004-06.

The Crown Estate does not seem to have the mechanisms to ensure that sites, once leased, are actually used. Because many of the sites are owned by large organisations, such as Pan Fish, which has a huge range of locations and leases, amendment 14 would not be a form of overregulation or micromanagement. The bill should take account of the need to underpin access for small companies and new players in the business.

Yesterday, we debated organic food. We know that demand exists for organic salmon and that we could do with more of it. Small firms in that market are very different from the near-monopoly, mass-market producers such as Pan Fish. I contend that amendment 14 would make it possible for more small firms to get involved.

The only way to ensure that Crown Estate leases are subject to effective planning permissions under the Planning etc (Scotland) Act 2006 is to impose time limits on the use of sites in the planning permissions. It should not just be that people have to start using sites within five years; there should be a more detailed time imposition. That would have to be underpinned by the code of practice, which the bill will allow the Executive to alter. The issue that I have outlined is major.

The minister might have discussed with Alasdair Morrison the mechanisms for individuals to challenge competition breaches through the Competition Commission, but I do not recall viewing the timetable for taking big companies to task or the bureaucracy that is involved in that. I cannot fail to note that such companies keep applying for more sites. In the debate about the Clyde fishery, the planning application that has been mentioned most recently is the one from Marine Harvest for a site off South Corriegills in Arran, which has the potential to interfere with an agreement between the Community of Arran Seabed Trust and the Clyde Fishermen's Association to create a scallop seeding area there.

If large firms such as Marine Harvest are not using all their sites—and there is lots of evidence that they have plenty to choose from—controlling whether they could get more sites would not be micromanagement by the Executive; it would be proper management. Given the ministerial commitment to a statutory underpinning for the historic agreement between Clyde Fishermen's Association and COAST, it is surely obvious that the Executive should augment the approved code of practice with amendment 14, which would limit the length of time that a fish farm operator could have a site if it was not in use.

I move amendment 14.

Photo of Sarah Boyack Sarah Boyack Labour 3:00 pm, 1st March 2007

Amendment 14 is the same as a probing amendment that Rob Gibson lodged at stage 2. I said then that the Executive's intention was to strike a balance in the bill between regulation and not undermining investor confidence in the industry. The bill is appropriate regulation and retains the commercial freedom that our aquaculture industry requires to remain competitive. That approach has been welcomed by the Environment and Rural Development Committee and it would be disrupted if the Parliament were to accept amendment 14.

Rob Gibson mentioned the Planning etc (Scotland) Act 2006. The five-year time limit on undertaking development has been reduced to three years under that act, so there has been a reduction in the timescales. At stage 2, I gave the committee a number of examples of the legitimate commercial reasons that might prevent the development of particular fish farm sites at any given time. I also explained at stage 2—and subsequently in correspondence to Alasdair Morrison, which I copied to the convener of the Environment and Rural Development Committee—that any companies that believe themselves to be subject to unfair competition may take that up with the Office of Fair Trading.

Given the probing nature of Rob Gibson's stage 2 amendment and the fact that he withdrew it, I was not required to consider its legal effect in detail. However, the proposal is now before the Parliament in amendment 14, and I must consider its effect. Amendment 14 seeks to include a time limit within the code of conduct that the Scottish ministers may approve under section 7. Section 8 requires the Scottish ministers to monitor compliance with any such code and gives them the power to issue notices that require the taking of such steps as they consider necessary to secure compliance with the code. Contravention of such a notice without reasonable excuse would be an offence.

The legal effect of amendment 14 would not be to force companies to free up undeveloped sites, nor even to encourage them to do so, but to give an unreasonable degree of power to the Scottish ministers. I doubt that Rob Gibson really intends that the Scottish ministers should be able to force the occupiers of fish farm sites to operate a business on those sites on pain of criminal sanction, but that would be the effect of his amendment 14 were it to become law.

I fully understand the concern that lies behind amendment 14, which is that companies may be stifling competition by hanging on to potential fish farm sites and thereby limiting the opportunities for other companies and the potential growth of the aquaculture industry. As I said at stage 2, the issue is important, and the Executive takes an active interest in the work that Fisheries Research Services, the Crown Estate, the Scottish Environment Protection Agency and the Scottish Salmon Producers Organisation are doing on site use and availability and the efficiency of site sharing among key players. Rob Gibson's amendment 14 would not be effective in preventing abuse that involved anti-competitive practices or agreements or abuse of a dominant position. That would be a matter for the competition authorities.

I urge Rob Gibson to withdraw amendment 14 for the reasons that I have outlined.

Photo of Rob Gibson Rob Gibson Scottish National Party

As the Environment and Rural Development Committee's stage 1 report suggested,

"the long-term retention of sites which are left inactive is unacceptable."

I have listened to the minister saying that she does not want to criminalise such a situation, but my amendment 14 would allow the Executive to make the point that, as such a large number of sites—more than half the sites in existence—are not being used, something extra special must be done to bring them into production.

In our party, we believe that the difficulties that small companies face in using the OFT mechanism makes its use more wishful thinking than a real opportunity. The time and the cost that would be involved in small companies trying to get a decision shift the balance very much in favour of the largest firms and against potential smaller incomers into the business. We want more entrepreneurs. We want young people to come into the business. How are people going to be able to start using any of the sites? That is the question.

Amendment 14 would open up potential for unused sites. I do not see how there can be an objection to it, because it depends on actions being taken by the Executive, which could go down the criminal route or could allow for a tougher approach to be taken with planning applications and advice. People should not just be advised to start development within three years; sites must be used each year, with their use being surveyed. The practical interpretation of amendment 14 would come in secondary legislation. The principle is one of opening up sites.

Photo of Murray Tosh Murray Tosh Conservative

The question is, that amendment 14 be agreed to. Are we agreed?

Members:

No.

Photo of Murray Tosh Murray Tosh Conservative

There will be a division. I suspend the meeting for five minutes.

Meeting suspended.

On resuming—

Division number 1

For: Adam, Brian, Baird, Shiona, Ballance, Chris, Ballard, Mark, Byrne, Ms Rosemary, Canavan, Dennis, Crawford, Bruce, Cunningham, Roseanna, Ewing, Fergus, Fabiani, Linda, Gibson, Rob, Grahame, Christine, Harper, Robin, Harvie, Patrick, Hyslop, Fiona, Ingram, Mr Adam, Lochhead, Richard, MacAskill, Mr Kenny, Marwick, Tricia, Mather, Jim, Maxwell, Mr Stewart, McFee, Mr Bruce, Morgan, Alasdair, Neil, Alex, Robison, Shona, Ruskell, Mr Mark, Scott, Eleanor, Stevenson, Stewart, Swinburne, John, Swinney, Mr John, Watt, Ms Maureen, Welsh, Mr Andrew
Against: Aitken, Bill, Alexander, Ms Wendy, Arbuckle, Mr Andrew, Baillie, Jackie, Baker, Richard, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Brownlee, Derek, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Davidson, Mr David, Deacon, Susan, Douglas-Hamilton, Lord James, Eadie, Helen, Fergusson, Alex, Finnie, Ross, Fraser, Murdo, Gallie, Phil, Gillon, Karen, Glen, Marlyn, Godman, Trish, Gordon, Mr Charlie, Gorrie, Donald, Henry, Hugh, Home Robertson, John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Johnstone, Alex, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, May, Christine, McAveety, Mr Frank, McGrigor, Mr Jamie, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Milne, Mrs Nanette, Morrison, Mr Alasdair, Muldoon, Bristow, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Petrie, Dave, Purvis, Jeremy, Robson, Euan, Rumbles, Mike, Scott, John, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stone, Mr Jamie, Wallace, Mr Jim, Whitefield, Karen

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 32, Against 70, Abstentions 0.

Amendment 14 disagreed to.