CHAPTER 4 - SECURING THE FUTURE
111. The Scottish Government is committed to ensuring that Scotland's marine and coastal environment is "clean, healthy, safe, productive and biologically diverse" and managed to meet the long-term needs of nature and people. This includes managing our seas sustainably to protect their rich biological diversity but also to ensure they continue to provide economic, social and other benefits for people and communities.
112. The preference of Scottish Ministers would be to apply
the proposals in this chapter to all of the seas around Scotland, stretching out to the 200nm limit. However we have not completed discussions with the UK Government on the best way forward for managing our seas. If we cannot secure further devolution we would consider how best to operate the proposals within the existing distribution (Box 4.1) of devolved and reserved responsibilities.
THE THREE PILLAR APPROACH
113. The three pillar approach to marine nature conservation represents the best way forward for the sustainable management of Scottish seas. These three pillars are:
I. the contribution of wider seas measures;
II. species conservation; and
III. site protection.
114. This chapter outlines the Scottish Government's preferred way forward on each pillar and the key links between them. Some of the improvements will require new legislation while others could be implemented under existing legislation. Some of the improvements to the species and sites pillars could be implemented through marine planning or other general improvements to the management of our seas while others may require more specific or technical measures.
Q27 Do you agree that our system of marine nature conservation should be based on the three pillar approach?
Pillar I: Wider seas measures
115. The term "wider seas measures" refers to any measures that benefit marine nature conservation but which are more general in scope than the other two pillars or relate to specific arrangements for individual economic sectors. This could include sector-based plans, development consents and voluntary agreements.
Box 4.1 The Current Position
The key legislative measures for marine nature conservation include some that also apply in our terrestrial environment. All are complemented by other measures such as the Scottish Biodiversity Strategy 15 and UK Biodiversity Action Plan.
Wider seas policy (the measures that benefit marine nature conservation but are more general in scope) and management makes a very important contribution to marine nature conservation. For example, fisheries management in Scotland has delivered substantial reductions in by-catch of other marine species and wider environmental legislation requires Environmental Impact Assessment and Strategic Environmental Assessment of impacts on marine biodiversity prior to approval of relevant plans or projects for sector-based activities.
The following legislation provides for nature conservation in the marine environment.
- The EC Habitats Directive that includes action to designate protected areas for habitats and species of European importance and wider protection of particular species.
- The EC Wild Birds Directive that includes broadly equivalent provisions for wild birds to those in the Habitats Directive.
- The Wildlife and Countryside Act 1981 (as amended) and the Nature Conservation (Scotland) Act 2004 apply out to 12nm around Scotland and include protection measures for marine species. The latter also includes the Biodiversity Duty on public bodies which is supported by the Scottish Biodiversity List i.e .the list of species and habitats considered to be of principal importance for the purpose of biodiversity conservation in Scotland.
- The Conservation (Natural Habitats &c.) Regulations 1994 (as amended) that implement relevant EC legislation inside 12nm.
- The Offshore Marine Conservation Regulations 2007 that implement the Birds and Habitats Directives outside 12nm.
In total, these measures were designed to deliver current aims, policies and obligations on marine nature conservation, including those at the national level and co-operative actions with other countries in the UK, Europe and beyond.
116. Current measures that are not specifically aimed at nature conservation but nevertheless deliver a very important contribution to aims, policies and obligations include:
- fisheries management through the current Common Fisheries Policy and inshore fisheries legislation;
- consents for other marine activities and uses, for example through FEPA and CPA;
- other sectoral controls;
- legislation on Strategic Environmental Assessment and Environmental Impact Assessment; and
- controls on activities based on land that include provisions for the intertidal area and consideration of impacts in the marine environment.
117. The Biodiversity Duty in the Nature Conservation (Scotland) Act 2004 could also be considered as a wider measure in that it is not limited in its application to protected sites or specific species protection. Some potential improvements to this duty are described below.
118. Wider seas policy can deliver a substantial potential contribution for marine nature conservation. Significant opportunities would be created by a new system of marine planning and the duty Scottish Ministers intend to place on Marine Scotland to deliver ecosystem management and safeguard biodiversity (chapter 2). Improvements in data and science will also deliver benefits in how we manage our seas. This will contribute to our aim of healthy and biologically diverse seas, for example by providing a better basis on which to consider applications for uses of our seas in specific locations (chapter 5).
Marine Ecosystem Objectives
119. Marine Ecosystem Objectives ( MEOs) (see also Objectives section in chapter 2) are examples of new measures of relevance to wider seas policy that could deliver improvements for marine biodiversity. All three pillars would contribute to achieving these objectives but marine planning could play a very significant role. The SSTF suggested the following potentially distinctive areas where MEOs might be developed:
- sea type;
- seals; and
Q28 Please provide your views or comments on the application of Marine Ecosystem Objectives for marine nature conservation?
The Biodiversity Duty
120. The Biodiversity Duty on all public bodies and office holders contained in section 1 of the Nature Conservation (Scotland) Act 2004 currently only extends out to 12nm. If Scottish Ministers achieve further devolution of nature conservation in the offshore area beyond 12nm, the Scottish Ministers would propose extending the scope of the duty to apply to all public bodies exercising functions in the offshore area. If further devolution cannot be agreed we would discuss with the UK Government how best to take forward this proposal.
Q29 Do you agree it would be worthwhile to have a biodiversity duty in the offshore area around Scotland?
Q30 Do you have any other suggestions for making improvements to Pillar I - wider seas measures?
Pillar II: Species conservation
121. This section considers potential improvements to species protection measures on two levels. Firstly, the case for improvements to the general system of species management and, secondly, the more specific legislation relating to seal management issues.
122. A range of species protection legislation exists (Box 4.2). Legal measures primarily relate to criminal offences that are punishable through fines or prison sentences.
Species protection review
123. The consensus is that current systems for species management in the wider environment are in general fit for purpose within 12nm. The species protection pillar does not stand alone and separate from the other two pillars. Some marine protected areas are designated for species and Marine Scotland will be expected to take account of the need to safeguard marine biodiversity. Similarly, species protection measures and marine planning are expected to contribute to effective site protection. Site based measures and species protection measures will be one of the considerations within the marine planning decision making process. Scottish Ministers believe key improvements to species protection would in the main be better achieved through marine planning and/or activity relating to Marine Ecosystem Objectives rather than creating specific new criminal offences.
124. Outwith 12nm the UK Government currently has responsibility for species protection. The UK Government has implemented the EC Birds and Habitats Directives from 12-200nm through the Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007. There is no additional domestic legislation on protection of species in this area (the WCA 1981 only applies out to 12nm). Under devolution for marine nature conservation the responsibilities for species protection within this extended boundary, possibly including powers to legislate on these matters, would fall to Scottish Ministers.
125. While the current system of species protection is largely fit for purpose we plan to initiate a science-based review of whether new marine species need to be added to the existing list of protected species.
Q31 Do you agree with the proposals for a science-based review of whether new marine species need to be added to the existing list of protected species?
Box 4.2 Existing measures for species
The Wildlife and Countryside Act 1981 ( WCA 1981) (as amended) includes a system for delivering legal protection for nationally important species of animals and plants on land and in the sea out to 12nm. For the animal species listed in the relevant schedule it is an offence to undertake certain actions including to intentionally or recklessly kill, injure or take them, or unlawfully possess or offer them for sale, or disturb them in certain circumstances. The list currently includes a range of marine species including basking sharks, pink sea fans and lagoon sandworms. Equivalent provisions are in force for plant species. Scottish Ministers may vary any schedule of the Act by order and this process can be used to extend protection to other species.
The Conservation (Natural Habitats &c.) Regulations 1994 (as amended) (1994 Regulations) implement the Habitats Directive in domestic legislation and include similar offences to the WCA 1981, such as taking, killing and disturbance, which apply to European Protected Species ( EPS) of animal. Like the WCA 1981, the 1994 Regulations extend out to 12nm. Several marine species found in Scotland are protected in this way such as bottlenose dolphin, harbour porpoise and all other species of cetacean. Certain plants also have protection under these Regulations. The Regulations include further controls for EPS, and certain other animal species such as seals, by prohibiting indiscriminate methods of capture or killing them.
Nature Conservation (Scotland) Act ( NCA 2004) biodiversity list requirement
The NCA 2004 made important amendments to nature conservation legislation in Scotland, and in addition introduced a requirement for Scottish Ministers to produce a list of species and habitats that were of principal importance for the purpose of implementation of the biodiversity duty that the Act placed on public bodies. The list includes marine species and habitats and is currently being reviewed by SNH. The Act only extends out to 12nm.
Grey and Harbour Seals
In addition to the 1994 Regulations, the Conservation of Seals Act 1970 (the Seals Act) protects seals during annual close seasons and provides for the introduction of conservation orders to protect vulnerable populations.
Salmon Conservation Regulations
Scottish Ministers, where they consider it necessary or expedient for the conservation of salmon, under section 38 of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003, may make Salmon Conservation Regulations. If it were deemed appropriate for the purpose of salmon conservation, and after consultation, Scottish Ministers could make regulations affecting, for example, fishing for salmon in the sea, in estuaries or in rivers.
126. Scottish Ministers believe that species protection provisions would need to be backed up by compliance monitoring, enforcement and public education. It is proposed that such activities on species protection will be carried out by Marine Scotland, taking advice from SNH where appropriate.
Grey and Harbour Seals
127. In contrast to the general picture on species management, Scottish Ministers believe that the Conservation of Seals Act 1970 needs to be amended. This would improve and clarify the level of protection afforded to seals while at the same time balancing this with the need to maintain sustainable fisheries and aquaculture.
128. The Seals Act is now operating in a significantly different environmental and socio-economic context to when it was passed. The Habitats Directive introduced additional measures to protect seals in 1992, and these were implemented through the 1994 Regulations. The introduction and expansion of the aquaculture industry and the implementation of the Common Fisheries Policy have also resulted in significant changes. The Appendix to this chapter contains an outline of options for amending seals legislation, together with a consultation question, based on the work of the Scottish Seals Forum.
Q32 Do you have any further comments or suggestions for making improvements to Pillar II - species conservation?
Pillar III: Site protection
129. Site protection in the marine environment can be a very effective tool for achieving nature conservation objectives and there is scope for considerable variety in the range and types of marine protected sites. The International Union for Conservation of Nature's widely accepted definition of protected areas includes types that range from nature reserves to areas managed mainly for the sustainable use of natural ecosystems.
130. Site protection is only one of the mechanisms for the protection of marine biodiversity and it is important that its contribution is seen within the context of wider marine policy and linked with appropriate marine planning mechanisms and species conservation measures.
131. Scottish Ministers are working with SNH to complete their contribution to the EU-wide Natura network in Scotland's territorial waters (Box 4.3). This contribution can be delivered largely through existing legislation. SNH are conducting survey work to identify any additions that are needed to the network of sites. The first step in the latter programme is the proposals to extend 31 Special Protection Areas ( SPAs) for seabirds into the marine environment to take account of the wider habitat needs of the qualifying species (the sites do not currently go below the low water mark).
Box 4.3 Protected Areas EU Legislation
As part of devolved functions on nature conservation Scottish Ministers currently have responsibility for designating Natura sites in the territorial waters around Scotland out to 12nm. The Natura network includes Special Areas of Conservation ( SACs) designated under the EC Habitats Directive for qualifying marine and inter-tidal species and habitats and SPAs classified under the Birds Directive for qualifying species of seabirds (Figure 4.1). Scottish Ministers have to date designated 35 SACs for marine and coastal habitats and 17 SPAs under the Birds Directive for qualifying species of seabird in parts of Scotland's marine environment (and a further 31 protect other key seabird habitats such as cliff nesting sites). These sites collectively form Scotland's existing contribution to the marine element of the EU-wide network of Natura sites. The types of site management approach vary depending on the needs of each site but are designed to ensure delivery of the Birds and Habitats Directives.
Figure 4.1 Special Protection Areas ( SPAs) and Special Areas of Conservation ( SACs) in Scotland's marine environment
132. Scottish Ministers' legal powers for site protection and designation of important areas of biodiversity are currently limited to those that implement the Birds and Habitats Directives; except for a power in the WCA 1981 to designate Marine Nature Reserves which has never been used and which was criticised by the Review of Marine Nature Conservation 16 as an ineffective mechanism.
133. The Habitats Directive is considered by some to be limited in its protection of important marine habitats and species, as it only provides site protection for 13 coastal and marine habitat types and 8 coastal and marine species. The Birds Directive provides protection for 52 bird species found in Scotland which are either regularly occurring migratory species or listed on Annex I of the Birds Directive. The existing marine habitats and species listed under the Birds and Habitats Directives is contained in Annex C.
Marine Strategy Framework Directive ( MSFD) and International Commitments
134. The value of the site protection, and the establishment of MPAs for conservation and sustainable management of biodiversity, is supported by European and international policy frameworks. There is growing interest in networks of MPAs and the MSFD (described in more detail in chapter 2) envisages MPAs as an important contribution to the measures needed to achieve Good Environmental Status ( GES). The MSFD states that these should include spatial measures contributing to coherent and representative networks of marine protected areas including SACs, SPAs and MPAs fulfilling international and regional agreements.
135. Additionally, the Scottish Parliament voted in support of the view that the Scottish Government should have responsibility for delivery of marine nature conservation (in all of Scotland's seas, out to 200nm), including the network of marine protected areas, sufficient to meet Scotland's international obligations under the OSPAR Convention and World Summit on Sustainable Development ( WSSD). At an OSPAR meeting in 1994, countries in the North-East Atlantic agreed to develop an ecologically coherent network of well managed marine protected areas by 2010. And in 2002, at the WSSD, the UK committed to the conservation and sustainable management of marine and coastal biodiversity, including the establishment of representative networks of marine protected areas by 2012.
Power to select new types of site
136. We propose to introduce a new flexible power for Scottish Ministers to identify, designate or recognise particular locations of biodiversity importance. This new power would be distinct from Scottish Ministers' existing powers to designate Natura sites and could be used to recognise locations of habitats or species which are important, rare, threatened, representative or which contribute to a wider network. The power could also be used to demonstrate particular approaches to management of our seas. Information gained from demonstration sites could be used more widely for the purpose of improving our approaches to the sustainable development of the marine environment. New types of uses for this power were considered by the SSTF (Box 4.4).
137. Scottish Ministers propose that the system of new MPAs will complement the existing Natura network and will fulfil the international agreements and obligations, such as OSPAR. It will also allow Scottish Ministers to designate sites that they believe are important for Scotland, outwith any international requirements.
Box 4.4 SSTF consideration of requirements for site protection.
With regard to the natural heritage interest, it was considered that there were three main tiers of requirement for site protection:
- sites established to deliver Scotland's contribution to European and international commitments, such as the Natura network and the establishment of a coherent network of marine protected areas, as required by WSSD, OSPAR and by the European MSFD;
- sites established to deliver such national Scottish priorities as may be agreed now and in the future. For example, these might include sites perceived as being particularly important in a Scottish context but not covered by European or international obligations; sites which are perceived to hold particularly high species richness; and sites that are developed for the purpose of demonstrating or carrying out research on particular management approaches; and
- sites initiated by local communities and which can be shown to bring benefits to those communities, such as Lamlash Bay.
Q33 Do you agree with the overall principle of the introduction of a power to select new types of site?
Q34 Do you agree with the assessment of the three main types of requirements for site protection? Do you have any further comments on this?
138. We are also exploring the scope for designing an approach to site protection that would integrate the needs of both the historic and natural environment in a single approach.
Q35 Do you have any views on whether or not a "single approach" should be taken for marine historic and natural environment site protection?
How will the power be used?
139. Scottish Ministers must use any power proportionately and will seek to engage with stakeholders on a case by case basis. We envisage the legal framework, or associated guidance, will outline the circumstances in which the power could be used. Each site proposal would make clear:
- the case for site protection;
- current information on its state;
- the proposed management arrangements; and
- what we anticipate in terms of monitoring arrangements.
140. Where the new power is being used to identify, designate or recognise an area for conservation purposes we propose to select these according to a set of science-based ecological criteria, except where two or more alternative sites could equally meet the scientific criteria for selection.
141. Scottish Ministers propose that legislation also allows for deselecting a site, or amending its boundary. Such a change would require consultation with stakeholders but flexibility is needed as our scientific understanding of the sea is constantly improving. It is important that Scottish Ministers are able to take decisions now, and in the future, on site selection, de-selection and site management based on the latest scientific data and with a view to the most effective and efficient nature conservation outcomes. Each generation will have its own understanding of where nature conservation priorities should lie and flexibility is also needed to reflect climate change and the changing uses of the seas, such as increases in shipping and the development of new industries.
142. Further work is underway to consider how best to use such powers proportionately in order to develop networks and identify suitable locations. One way would be to prioritise those sites richest in biodiversity, and perhaps those which have been least damaged.
Q36 Do you agree with the proposals on how a new flexible site protection power will be used? Do you have any other comments?
Q37 Do you have any views or comments on whether a single integrated power should be used to deliver these proposals?
How will sites be managed?
143. In most cases social and economic uses are likely to be compatible with the protection of the features for which a site is selected and may be encouraged as they maximise the overall sustainable development return from the ecosystem. However, decisions on which activities are compatible with the aims of a site will have to be taken on a site by site basis.
144. Multiple uses for sites will be assumed, with restrictions only on those activities which are likely to have a significant or adverse effect on the features for which sites are selected. No unnecessary restrictions will be put on activities which are not likely to damage those features for which a site is selected.
145. Sites will be managed within the context of sustainable development. And, where socio-economic uses are compatible with the aims of the site, there will not be a presumption against such activities taking place in conservation sites.
Q38 Do you agree with the proposals for how sites will be managed, including the site by site based approach and the overall context of sustainable development? Do you have any additional comments?
MPAs and the Marine Planning System
146. As stated earlier, the marine planning system will be integral to the successful delivery of marine nature conservation and ecosystem management. Marine Planning is also expected to play an important role in the overall success of site management and Marine Scotland would incorporate site considerations into the overall decision-making process.
147. However Scottish Ministers believe that there is still a distinct need for a separate power to create MPAs. The SSTF has clearly indicated its support for the three Pillar approach, and in the short term there are a number of international commitments to create new networks of MPAs, such as under OSPAR and WSSD. A further reason for the need for a separate power to designate MPAs is for cases where Ministers may need to designate sites urgently.
148. Creating a separate power would not prevent it from being implemented through the work that would be done to create a wider marine planning system. In fact in the longer term we expect the planning system could be used to review existing sites and consider the need to identify new ones. However, we are seeking to create a power to designate sites that can be applied independently of the marine planning process.
149. Scottish Ministers propose to create last resort powers to introduce conservation orders or management agreements to control activities for such sites where necessary and we may also apply these provisions to marine Natura sites through separate legislation. We propose to use these powers only where no alternative exists through wider approaches such as marine planning. In applying these powers we would aim to be flexible and recognise that only some activities need to be restricted and that it may be possible to accommodate a certain amount of the activity through a licence-based approach. In our view the conservation order powers in the Seals Act, and powers under fisheries legislation may provide a suitable model. In particular they include public scrutiny of proposals.
Q39 Please provide us with your views on the role that a wider planning system should have in the identification of Marine Protected Areas?
Box 4.5 Linking land-based and marine protected areas
There are a number of existing designations which can be used to safeguard areas of land and coast considered to be of local, national and international importance for their natural heritage. These include Sites of Special Scientific Interest ( SSSIs), National Nature Reserves ( NNRs) and Regional Parks. Consideration needs to be given as to how any proposals for new MPAs complement existing land-based mechanisms.
SSSIs and NNRs have always been primarily terrestrial mechanisms. In Scotland they do not extend below Mean Low Water Springs. If an MPA is identified in order to protect habitats or species that are found intertidally, then there is likely to be an overlap between powers for site protection for terrestrial and marine designations. Avoiding this by moving the boundary of SSSI and NNR inland to Mean High Water Springs would involve a great deal of administrative work de-designating areas safeguarded under terrestrial provisions and re-designating them under new marine provisions. We are keen to avoid creating a more complex system, and are considering how best to set up a new MPA mechanism so that it works alongside the existing land-based protected areas.
Links between MPAs and land-based protected areas.
150. The conservation of our natural heritage is a common aim across management of our marine and terrestrial environment. There are significant differences between the sea and land and people's use of these areas but we would like to ensure as far as possible that our approach is consistent. There are options about how best to link new MPAs with existing protected areas covering coastal land. We propose to retain the existing seaward boundary of SSSIs at low water mark and make provisions for powers to be used to identify, designate or recognise new marine areas up to high water mark. There are a number of relevant issues related to linking land and marine based site protection (Box 4.5).
Q40 Do you have any other comments or suggestions for making improvements to Pillar III - site protection?
Offences and Penalties
151. The WCA 1981, the 1994 Regulations and the Seals Act contain species offences and associated penalties. The relevant provisions in the WCA 1981 and the 1994 Regulations do not differentiate between terrestrial and marine species. The penalty for committing an offence against the species, such as taking or killing is, on summary conviction, imprisonment for a term not exceeding 6 months or a fine not exceeding £5,000. Penalties for offences relating to release or sale of certain invasive terrestrial or marine species are higher.
152. The 1994 Regulations contain an offence of intentional or reckless damage to a natural feature by reason of which land has been designated as a Natura site. On summary conviction for such an offence there is a maximum fine of £5,000 available to the courts and on conviction on indictment there is no limit to the fine which the court may impose. The Nature Conservation (Scotland) Act 2004 contains a similar offence for damaging any natural feature by reason of which land has been notified as a Site of Special Scientific Interest ( SSSI). On summary conviction for such an offence there is a maximum fine of £40,000 available to the courts and on conviction on indictment there is no limit to the fine which the court may impose. No prison sentence is available to courts to impose for either of these offences. Land may include the intertidal area between high and low water mark and these offences therefore apply to those SSSIs and Natura sites which protect the intertidal area. However, there is some doubt about whether the offence relating to Natura sites applies to features below the low water mark and we wish to put the matter beyond doubt.
153. We do not propose to legislate to amend the existing offences and penalties for marine species but, as discussed earlier, we intend to review whether new species should benefit from such protection and there may also be a need over time to review the current level of penalties. We do, however, propose to improve our system of marine nature conservation by addressing the above gap in protection for marine Natura sites and by creating a similar offence for damage to new types of protected sites in the marine environment.
Q41 Would you agree with the principle that the offence against damage to Natura sites should apply to marine sites? What are your views on whether a similar offence should be introduced for damage to other Marine Protected Areas?
154. Nature conservation is not just an international obligation and a moral duty. The natural environment is inextricably linked with Scotland's identity and is one of the underpinnings of its economic prosperity. Wildlife tourism is a growing contributor to Scotland's economy but the economic benefits go far beyond the direct activities of wildlife operators. Recognising and developing the economic contribution of the wild marine environment to Scotland is important for securing public support for nature conservation and developing its full potential.
Q42 How can we enhance the contribution which the wild marine environment makes to Scotland's economy?
APPENDIX TO CHAPTER 4
SEALS FORUM REVIEW OF THE CONSERVATION OF SEALS ACT 1970
155. The Scottish Seals Forum has examined the case for amending the Conservation of Seals Act 1970 (the Seals Act). Scottish Ministers propose to make technical changes to deliver the following overall aims:
- placing seal management across all sectors - i.e. aquaculture, fisheries and netting stations - on an equal footing (licensing and seal conservation orders);
- improving welfare;
- improving definitions under the "netsmen's defence" (see below);
- making provision for reporting and monitoring of all seal management; and
- making transposition of the EU Habitats Directive in the Seals Act clearer.
156. The main options for achieving these aims, together with corresponding consultation questions, are set out below.
Equal Treatment across All Sectors
157. The EU Habitats Directive requires that seal management across all sectors ( i.e. fisheries, netting stations and aquaculture) be effectively monitored and controlled to protect vulnerable seal populations. The options in relation to "licensing" and "seal conservation orders", set out below, should ensure equal treatment across all sectors ( i.e. fisheries, netting stations and aquaculture).
158. Control of seal shooting through licence provides a valuable management tool to protect seals during the breeding seasons and under seal conservation orders. It does not apply to all industry sectors and there is a strong case for reform.
- Option 1 - extend the licensing power to the whole year, remove the "netsmen's defence" and also permit fish farms to be issued with licences to protect cages or stock.
- Option 2 - do not make all these reforms but permit fish farms to be issued with licences to protect cages or stock in close seasons or under seal conservation orders (as they do not currently have that facility).
Seal Conservation Orders
159. The power to introduce seal conservation orders provides Scottish Ministers with a very effective device to monitor and control the shooting of seals in areas where a potential threat to the conservation status of seal populations exists. This power is currently limited by the exception contained in the "netsmen's defence". If option 1 (under "licensing") is not adopted, the defence should be redefined to extend its scope to apply not only to protecting fishing gear and catches but also fish farm cages and stocks. At the same time we would make it clearer in which specific circumstances the revised defence can be used (see below) and also specifically exclude its use where a seal conservation order is in place.
160. The current close season arrangements which protect seals during the breeding seasons should be retained but the time periods for these should be reviewed.
161. Consideration should be given to amending the rifle specification under the current method of killing in the interests of animal welfare and public safety.
- Option 1 - provide an improved and more humane rifle specification via the Scottish Marine Bill.
- Option 2 - make this change using a separate order in advance of the Bill.
The "Netsmen's Defence"
162. The "netsmen's defence" permits fishermen to shoot seals to prevent them from causing damage to fishing nets and catches, while in the vicinity of such nets, including during close seasons and under a seal conservation order.
163. If the "netsmen's defence" is retained in a modified form the specific circumstances in which it may be called on will require clarification. The existing terms "vicinity" and "fishing net or fishing tackle" will require clearer definition and specific additional restrictions will be considered - e.g. for seal SACs and seal haul out locations.
Reporting and Monitoring
164. If option 1 under "licensing" ( i.e. extending licensing powers to include all shooting of seals) is not adopted, a requirement to report all shooting of seals to Scottish Ministers whether under licence or otherwise should be included. This would permit monitoring of the impact of overall levels of shooting on the conservation status of seal populations.
Relationship with the EU Habitats Directive
165. In order to ensure that the Seals Act is consistent with the EU Habitats Directive and the 1994 Regulations, some defences will have to be removed ( e.g. the defence relating to impacts on seals arising from incidental results of other activities) and others will have to be adjusted. In addition, the grant of a licence will be made subject to further conditions (no other satisfactory solution and maintenance of favourable conservation status).
Q43 Do you have any views or comments on the options for improving conservation measures for seals? Do you have any specific comments on:
a) equal treatment across all sectors (licensing and seal conservation orders);
b) welfare issues;
c) the "Netsmen's defence";
d) reporting and monitoring;
e) relationship with the EU Habitats Directive; and
f) any other comments?