The Sea Fish (Prohibited Methods of Fishing) (Firth of Clyde) Order 2002

Scottish Statutory Instruments

2002 No. 58

SEA FISHERIES

CONSERVATION OF SEA FISH

The Sea Fish (Prohibited Methods of Fishing) (Firth of Clyde) Order 2002

Made

13th February 2002

Laid before the Scottish Parliament

13th February 2002

Coming into force

14th February 2002

The Scottish Ministers, in exercise of the powers conferred by section 5(1)(c), 15(3) and 22(2)(a) of the Sea Fish (Conservation) Act 1967(1), and of all other powers enabling them in that behalf, hereby make the following Order:

Citation, commencement and extent

1.—(1) This Order may be cited as the Sea Fish (Prohibited Methods of Fishing) (Firth of Clyde) Order 2002 and shall come into force on 14th February 2002.

(2) This Order shall remain in force until 30th April 2002.

(3) Subject to paragraph (4), this Order extends to Scotland and the Scottish zone only.

(4) Insofar as it extends beyond Scotland and the Scottish zone, it does so only as a matter of Scots law.

Interpretation

2.—(1) In this Order–

“the Act” means the Sea Fish (Conservation) Act 1967;

“the Council Regulation” means Council Regulation (EC) No. 850/98 of 30th March 1998 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms(2) as corrected by Corrigendum to Annex XII of the Council Regulation(3) and amended by Council Regulation (EC) No. 308/1999(4), Council Regulation (EC) No. 1459/99(5), Council Regulation (EC) No. 2723/99(6), Council Regulation (EC) No. 812/2000(7), Council Regulation (EC) No. 1298/2000(8), and Council Regulation (EC) No. 724/2001(9);

“creel” means a basket, small cage, pot, receptacle or container with one or more openings or entrances, which may be baited and is placed on the seabed for the purpose of catching shellfish and crustacea;

“ICES statistical rectangle” followed by numerals with a letter shall be construed as a reference to whichever of the statistical sub-areas and divisions of the International Council for the Exploration of the Sea(10) is identified therein by those numerals and that letter;

“scallop dredge” means an appliance with a rigid framed mouth which is towed through the water and is manufactured, adapted, used or intended for use for the purpose of fishing for king scallops of the species Pecten maximus;

“Scotland” has the same meaning as in section 126(1) of the Scotland Act(11);

“trawl” means a demersal trawl, Danish seine or similar towed net.

(2) For the purposes of this Order a trawl shall be deemed to have been used for the purpose of fishing for Norway lobsters (Nephrops norvegicus) if the catch retained on board that boat complies with the conditions laid down with respect to towed gears of mesh size range 70 to 79 millimetres in Annex 1 of the Council Regulation.

Prohibited Methods of Fishing

3.—(1) Subject to paragraphs (2) and (3), fishing by any method, by any Scottish fishing boat or any relevant British fishing boat, within the area comprising that part of the Scottish zone contained within–

(a) that part of ICES statistical rectangle 39E4 which lies to the east of the peninsula of Kintyre and to the north of a straight line between 55°18'18" North, 05°38'50" West, and 55°00'30" North, 05°09'24" West; and

(b) that part of ICES statistical rectangle 39E4 which lies to the north of a straight line between 55°17'57" North, 05°47'54" West and 55°00'00" North, 05°21'00" West and to the south of a straight line between 55°18'18" North, 05°38'50" West and 55°00'30" North, 05°09'24" West,

is prohibited.

(2) The prohibition in paragraph 3(1)(a) shall not apply to any fishing boat that fishes with–

(a) a scallop dredge;

(b) a creel; or

(c) a trawl used for fishing for Norway lobsters.

(3) The prohibition in paragraph 3(1)(b) shall not apply to any fishing boat that fishes with–

(a) a scallop dredge; or

(b) a creel.

Powers of British sea-fishery officers in relation to fishing boats

4.—(1) For the purposes of the enforcement of this Order, a British sea-fishery officer may exercise in relation to–

(a) any Scottish fishing boat wherever it may be; and

(b) any relevant British fishing boat within the Scottish zone,

the powers conferred by this article.

(2) The officer may go on board the boat, with or without persons assigned to assist with the duties of the officer, and for that purpose may require the boat to stop and do anything else which will facilitate the boarding of the boat.

(3) The officer may require the attendance of the master and other persons on board the boat and may make any examination and inquiry which appears to the officer to be necessary for the purpose mentioned in paragraph (1) and, in particular–

(a) may examine any fish on the boat and the equipment of the boat, including the fishing gear, and require persons on board the boat to do anything which appears to the officer to be necessary for facilitating the examination;

(b) may require any person on board the boat to produce any document relating to the boat, to its fishing operations or other operations ancillary thereto or to the persons on board which is in that person’s custody or possession and may take copies of any such document;

(c) for the purpose of ascertaining whether the master, owner or charterer of the boat has committed an offence under section 5(1) or (6) of the Act(12) as read with this Order, may search the boat for any such document and may require any person on board the boat to do anything which appears to the officer to be necessary for facilitating the search; and

(d) where the boat is one in relation to which the officer has reason to suspect that such an offence has been committed, may seize and detain any such document produced to the officer or found on board for the purpose of enabling the document to be used as evidence in proceedings for the offence,

but nothing in sub-paragraph (d) shall permit any document required by law to be carried on board the boat to be seized and detained except while the boat is detained in a port.

(4) Where it appears to a British sea-fishery officer that a contravention of this Order has taken place, the officer may–

(a) require the master of the boat in relation to which the contravention took place to take, or the officer may take, the boat and its crew to the port which appears to the officer to be the nearest convenient port; and

(b) detain or require the master to detain the boat in the port.

(5) Where the officer detains or requires the detention of a boat under this article the officer shall serve on the master a notice in writing stating that the boat will be or is required to be detained until the notice is withdrawn by the service on the master of a further notice in writing signed by a British sea-fishery officer.

ROSS FINNIE

A member of the Scottish Executive

St Andrew’s House,

Edinburgh

13th February 2002

Explanatory Note

(This note does not form part of the Order)

This Order prohibits, subject to certain exceptions, all methods of fishing within certain areas of the Firth of Clyde. A map showing the areas closed to fishing under this Order is appended to this note for illustrative purposes only. The Order remains in force until 0000 hours on the 30th April 2002 (article 1(2)).

Area 1 on the illustrative map is defined in article 3(1)(a).

Area 2 on the illustrative map is defined in article 3(1)(b).

The prohibition does not apply to vessels fishing within the closed areas exclusively with creels, scallop dredges and, trawls used for fishing for Norway lobsters (article 3(2) and (3)).

The Order gives British sea fishery officers powers to enforce the Order, including power to detain a vessel in port (article 4).

In terms of section 5(1) or (6) of the Sea Fish (Conservation) Act 1967 it is an offence to fish contrary to the prohibition contained in the Order. The maximum fine upon summary conviction for an offence under section 5(1) is £50,000 and upon summary conviction under section 5(6) is £5,000.

(1)

1967 c. 84; section 5(1) was substituted by the Fisheries Act 1981 (c. 29), section 22(1); section 15(3) was substituted by the Sea Fisheries Act 1968 (c. 77), Schedule 1, paragraph 38(3) and amended by the Fishery Limits Act 1976 (c. 86) Schedule 2, paragraph 16(1). Relevant modifications are contained in the Scotland Act 1998 (Functions Exercisable in or as regards Scotland) Order 1999 (S.I. 1999/1748), article 5 and the Scotland Act 1998 (Modification of Functions) Order 1999 (S.I. 1999/1756), articles 3, 5 and 6. The functions of the Secretary of State were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998 (c. 46). Section 22(2)(a) which contains a definition of “the Ministers” for the purposes of section 5 and 15(3) was amended by the Fisheries Act 1981, sections 19(2)(d) and 45(b). The definition has effect in relation to Scotland with the modifications made by section 22A(12)(b) inserted by the Scotland Act 1998 (Consequential Modifications) (No. 2) Order 1999 (S.I. 1999/1820); Schedule 2, paragraph 43(13).

(2)

O.J. No. L 125, 27.4.98, p.1.

(3)

O.J. No. L 318, 27.11.98, p.63.

(4)

O.J. No. L 38, 12.2.99, p.6.

(5)

O.J. No. L 168, 3.7.99, p.1.

(6)

O.J. No. L 328, 22.12.99, p.9.

(7)

O.J. No. L 100, 20.4.00, p.3.

(8)

O.J. No. L 148, 22.6.00, p.1.

(9)

O.J. No. L 102, 12.4.01, p.16.

(10)

Cmnd. 2586.

(11)

1998 c. 46.

(12)

Subsection (6) was amended by section 22(2) of the Fisheries Act 1981. By virtue of subsection (7), where subsection (6) is not complied with in the case of any fishing boat, the master, the owner and the charterer (if any) are guilty of an offence under that subsection.