The Sea Fishing (Enforcement of Community Quota and Third Country Fishing Measures) (Scotland) Order 2007

Explanatory Note

(This note is not part of the Order)

This Order, which forms part of the law of Scotland only, makes provision for the enforcement of certain enforceable Community restrictions and other obligations relating to sea fishing by Community vessels and third country vessels set out in Council Regulation (EC) No. 41/2007 (“the Council Regulation”). The Council Regulation fixes total allowable catches and the quotas of Member States for 2007 and lays down certain conditions under which they may be fished. It also authorises fishing by vessels of Norway and the Faroe Islands for specified descriptions of fish in certain specified areas within the fishery limits of Member States in 2007 and imposes requirements concerning fishing quotas and authorised zones, methods of fishing, the holding of licences and observance of licence conditions, the keeping of logbooks, the making of reports and similar matters.

The Order makes provision for the purposes of Article 9 of the Council Regulation (requirement for adequate sampling programme when landing unsorted catches) (article 3).

The Order makes provision for the Scottish Ministers to approve pelagic weighing systems for fisheries control purposes (article 4).

The Order provides that where over 10 tonnes of herring, mackerel or horse mackerel is landed in Scotland buyers or holders of the fish must weigh fresh fish using a pelagic weighing system which is approved by the Scottish Ministers or which has been passed as fit for trade use in accordance with the Weighing Equipment (Beltweighers) Regulations 2001. Frozen fish must be weighed in accordance with either paragraph 1.8.1 or 1.8.2 in Part A of Annex III to the Council Regulation. Failure to comply with any of those provisions is an offence (article 5).

Article 5 of the Order is subject to Article 6. Article 6 implements the derogation in paragraph 1.7 of Annex III to the Council Regulation. It allows fresh fish to be transported before being weighed from the port of landing to a place not more than 100 km from the port of landing provided the vehicle in which the fish is transported is accompanied by a British sea fishery officer or an approval has been granted in accordance with article 7 of the Order (article 6).

Article 7 sets out the conditions to which an approval is subject. Failure to comply with the conditions is an offence.

The Order makes provision in relation to vessels engaged in illegal, unreported and unregulated fishing in the North East Atlantic and the Northwest Atlantic. Offences are created in respect of contraventions or non compliance with certain provisions in Annex XVII to the Council Regulation (articles 8 and 9).

The Order makes it an offence to contravene the provision in Annex IA to the Council Regulation in relation to the quantity of dogfish retained on board (article 10).

The Order creates offences in respect of contraventions of the provisions of the Council Regulation referred to in column 1 (and briefly described in column 2) of Schedules 1 (Community quota measures), 2 (specified Community provisions) and 3 (Community third country fishing measures) to the Order (articles 11 and 12).

The Order provides penalties in relation to an offence under article 3(3) or 4(5) to (7), or 5(4) or 7(4) or 8(1) to (4) or 9(1) to (3) or 10 of the Order or any equivalent provision extending to any other part of the United Kingdom proceedings in respect of which were brought in Scotland by virtue of section 30(2A) of the Fisheries Act 1981 (c. 29). The statutory maximum penalty specified in the Schedules is currently £5,000. The Order also makes provision for additional penalties such as forfeiture (article 12). The Order makes provision in relation to the recovery of fines imposed in respect of such offences or an offence under article 18 (obstruction of officers) (article 13).

The Order confers on British sea fishery officers powers of enforcement in relation to fishing boats and on land. These include power to enter premises, to go on board fishing boats, to stop and search vehicles transporting fish, to examine fish, to require the production of documents, to search for and seize documents, to take a boat to the nearest convenient port and to seize fish and fishing gear (articles 14, 15 and 16). The Scottish Ministers are designated as the “competent authorities” for the purposes of paragraph 9.8 of Annex III to the Council Regulation. This gives powers to remove unattended gear at sea in certain circumstances (article 16(3)).

Provision is also made in relation to the liability of officers for anything done in the purported exercise of powers conferred by the Order (article 17). The Order creates offences and provides penalties in respect of the obstruction of a British sea fishery officer and makes provision in relation to offences committed by bodies corporate and partnerships and the admissibility of certain documents (articles 18, 19 and 20).

The Order revokes the Sea Fishing (Enforcement of Community Quota and Third Country Fishing Measures) (Scotland) Order 2006 (article 21).