5. The Governance System
5.1 Until very recently the governance of Scotland's fisheries has been characterised by a strongly hierarchical, top down system of decision making. Scotland's position has been disadvantaged not only by its subordination to a failing Common Fisheries Policy but also by the paradoxical situation in which Scotland, responsible for around 70% of the UK 's fishing activity, remains in some measure dependent on the Westminster Government for 'leadership' in negotiation with Brussels and in setting the broad framework for the internal management of the fishing industry. Devolution has gone a long way towards granting Scotland de facto control over fishing activities within its own nominal 200 mile limits and the conduct of its own fleet, but not yet in all relevant areas. Successive Scottish governments have shown a determination to improve the image of fisheries management, most notably in developing a stronger co-management approach. But the division of responsibility between the European institutions (Commission, Council of Ministers and Parliament) and the member states remains the defining characteristic of the governance system.
The Common Fisheries Policy
5.2 Since completion of negotiations leading to the initial basic Regulation governing the conduct of the CFP in 1982, the Commission has exercised 'exclusive competence' over all aspects of stock conservation. In other words, the Commission alone has been responsible for initiating policy proposals in relation to minimum landing sizes ( MLS ), mesh sizes, the setting of annual TAC s for all quota regulated species and the initiation of stock recovery and multi-annual management plans. Developing policy in these areas is the task of DG Mare, with a comparatively small establishment of persons mainly with backgrounds in fisheries science, law and to a lesser extent economics. Advisory support is provided through the Advisory Committee for Fisheries and Aquaculture ( ACFA ), the Scientific, Technical and Economic Committee for Fisheries ( STECF ) and, since 2003, the Regional Advisory Councils ( RAC s), each with a broad range of stakeholder representation and/or technical expertise. For its part the Council of Ministers has exercised sole responsibility for signing off Commission proposals into European legislation, though as a result of the Lisbon Treaty this responsibility will now be shared with the European Parliament.
5.3 The CFP is subject to a decennial review. In the past the Commission, Council and member states have all shied away from fundamental reform of the overall system. The underlying reason has much to do with an unwillingness to discuss the delicate balance between the principle of non-discrimination, which in fisheries policy translates into the notion of equal access, and the countervailing expedient of relative stability, guaranteeing member states an element of security against decisions taken in the name of equal access which could undermine the status of a member state's fishing industry. Relative stability, which is enshrined in the permanent allocation keys for the major commercial species agreed at the time of the 1982 basic Regulation, is regarded by some as the guiding principle of the CFP but by others as inhibiting the Policy's development. The current review of the CFP has for the first time chosen to question the relevance of relative stability.
5.4 Much of the time and energy of DG Mare is taken up with the micromanagement of the EU 's fisheries conducted through two principal mechanisms: the long standing system of single species TAC s and the monitoring and adjustment to the more recent stock recovery and multi-annual management plans 2 . TAC s and quota have formed the basis of EU fisheries regulation since 1982 with TAC s subject to annual renegotiations following advice from ICES and culminating in the December Council meeting. (For further details of this system see Chapters 9 and 10.) In instances where the exploitation of stocks is shared with non- EU countries, bilateral agreements are worked out usually in advance of the December Council meeting (e.g. the North Sea cod TAC involving the EU and Norway). Similarly, TAC s for high seas migratory stocks such as herring and mackerel are negotiated through the North East Atlantic Fisheries Council ( NEAFC ) where the EU represents all of its member states.
5.5 Stock recovery plans designed to tackle the problem of stocks suffering high levels of depletion, such as the iconic cod stocks of northern Europe, belong mainly to the period after 2000 though they relate to provisions in the 1992 basic Regulation for the introduction of multi-annual management planning. That which has most relevance in Scotland is the cod recovery plan ( CRP ), covering stocks in the North Sea, Kattegat, Skagerrak, Eastern Channel, West of Scotland and Irish Sea. The CRP , first introduced in 2003 and subsequently revised in 2008, is subject to a much more stringent regime than that applied in other multi-annual plans with restrictive TAC s for cod and related species, catch composition rules, gear regulations, closed areas and, most recently, the superimposition of days at sea restrictions. The latter were first formally introduced in 2009 with the Commission initially taking responsibility for setting individual vessel entitlements, though today effort ceilings expressed in kilowatt hours are set at Community level but managed by the member state. Other recovery plans have been established for the northern and southern hake stocks and integrated multi-annual plans are in place for sole (Bay of Biscay, Western Channel), plaice (North Sea) and Baltic cod.
5.6 The European Fisheries Fund ( EFF ) provides assistance to the fisheries sector to adapt to the overall aims of the CFP . In the past it was criticised for providing financial support to capacity growth and the modernisation of the fishing fleet through grants for new vessel construction at a time when conservation policy was looking to reduce overall capacity. Reform of the CFP in 2002 removed that anomaly. The current programme (2007-13) has a budget of €3.8 bn.
5.7 Under the CFP fisheries is recognised as one of the most heavily regulated of all the EU 's economic activities and in a rather more authoritarian manner than most. In fisheries the EU 's management decisions are communicated as regulations which must be transposed into member state law without variation in contrast to many other areas of Community policy where the 'softer' directive is used allowing member states some discretion as to the precise form of implementation.
Managing the national fishery
5.8 The basic rule of thumb commonly used to separate the role of the European institutions as concerned with policy formulation from that of the member states involved in policy implementation seriously underestimates the scope of the member state to carve out a distinctive form of national management. Four key areas of fisheries management remain the responsibility of the member states: licensing and fleet capacity; the quota management system; inshore fisheries; and enforcement. As the sovereign member state, the UK has nominal responsibility for negotiation with the EU and for ensuring the implementation of Community policy. In practice, however, key areas of domestic fisheries management have for many years been devolved to Scottish institutions including fisheries research through the then government agency Fisheries Research Service ( FRS ) in Aberdeen, enforcement by the Scottish Fisheries Protection Agency ( SFPA ) and inshore fisheries management under the Inshore Fishing (Scotland) Act of 1984 .
5.9 No vessel is permitted to fish commercially in European waters without an appropriate licence. Restrictive licensing was first introduced in the UK in 1984 to comply with EU obligations concerning quota management and control of fleet capacity. The licence functions in two ways: first by defining the extent and conditions of access that the vessel has to specified stocks and secondly by placing a ceiling on the number of vessels. In order for a new vessel to enter the fleet it must first acquire one or more existing licences from other previously licensed and now retired fishing vessels. Restrictive licensing tends to inhibit the modernisation and flexibility of the fleet, especially in the UK where since the 1990s successive governments spurned the opportunity to grant aid the building of new vessels. From 1990, however, the aggregation of two or more licences onto a single vessel enabled its replacement by a modern, larger vessel with increased capacity, subject to a penalty of a 5% reduction in the aggregated capacity and further restrictions to prevent the absorption of ²10 metre vessel licences into the larger vessel. In effect, licence aggregation penalties are a token gesture when set against the estimated 2_ to 3% annual growth in fishing capacity due to technical creep.
5.10 Despite attempts by some member states to have licensing centrally managed by the Commission, it remains a core member state responsibility. Moreover, the Commission has abandoned its attempts in the 1980s and '90s to bring about a centrally planned downsizing of the European fleet through Multi-annual Guidance Programmes. It now places a ceiling on each member's fleet, leaving it to the member state to decide how to achieve this. Independently of this move, the UK and Scottish Governments in the 1990s and early 2000s have carried out major decommissioning schemes and much more recently the Scottish Government's vessel parking scheme is an attempt to reduce the number of active vessels in the Scottish fleet and promote better financial returns.
5.11 Quota management is a key area of domestic fishing policy. At present the member state is free to decide how the national share of the TAC s is to be managed - normally through some form of individual vessel quota - and what rules should govern the internal transferability of quota. Over the years, the UK has developed a very distinctive system whereby the vast majority of quota is managed collectively through producer organisations ( PO s) under a system known as sectoral quota management. Separate, centrally managed systems are in place for a) over 10m vessels not in membership of PO s and b) the
²10 metre sector. (For the details see Chapter 11 and Appendices 3 and 5). For almost all major commercial species, Scotland's share of the UK quota exceeds 70% but there is to date no formal recognition of separate Scottish entitlements that would be needed to permit a distinctly Scottish form of quota management to emerge. In May 2008 the Scottish Government launched a consultation document (Scottish Government, 2008) and a temporary moratorium was introduced on the permanent transfer of FQA units and licences outside Scotland. These proposals have subsequently been shelved pending the outcome of the CFP reforms.
5.12 In the case of both licensing and quota management, the same systems apply across the UK . The management of inshore fisheries is very different. From the inauguration of the CFP in 1982, a derogation from the principle of equal access has been in operation through which management of the inshore waters (0-12 nm) is vested in the member state. In practice fishing within the 0-6 nm zone is reserved for the exclusive use of the member state's vessels and subject to regulations formulated by the member states. Community policy in respect of stock conservation must be observed though the coastal state can introduce more stringent rules, e.g. in respect of MLS . In the outer zone (6-12 nm) access is also provided to vessels from other member states with historic fishing rights. As regulations imposed by the coastal state can only apply to their own registered vessels, this outer zone is usually very lightly regulated in comparison to the inner zone.
5.13 The contrast between the two systems north and south of the border could not be starker. In England and Wales the system remained faithful to the local Sea Fisheries Committees originally established in the 1880s. Today, 12 committees, each responsible for a district extending out to 6 nm, manage the inshore fisheries. Funded mainly by local authorities, the committees comprise equal numbers of local councillors and appointees representing commercial, recreational fishing and other stakeholder interests. Guided by their own technical staff, their task is to make recommendations for improved regulation which, subject to Defra approval, can be implemented through local byelaws or as Regulating Orders ( RO s) under the Sea Fisheries (Shellfish) Act 1967 . Enforcement of local regulations is also the committees' responsibility and is exercised through their own establishment of sea going and land based fishery officers. The basic system, under a new name, will be retained under the new Marine and Coastal Access Act, 2009 except in Wales where the Welsh Assembly Government has opted to manage their inshore fisheries centrally.
5.14 In Scotland the provisions of the Inshore Fishing (Scotland) Act 1984 and the Sea Fisheries (Shellfish) Act 1967 have been sparingly used, a situation which most probably reflects earlier governments' lack of concern for the inshore sector at a time of relative prosperity for the demersal sector and a more general failure to appreciate the potential contribution of the then largely nascent shellfisheries to the overall fisheries based economy in Scotland. The Inshore Act was little used to promote the conservation and management of inshore fisheries and was mainly deployed to solve conflicts between static and mobile fishing fishing activities through zoning schemes. Only two RO s have been established under the 1967 Shellfish Act: the Shetland RO covering a wide range of shellfish found in the waters round the islands was introduced in 2000 for an initial 10-year period under the direction of the Shetland Shellfish Management Organisation; and the Solway RO covering only the cockle fishery came into operation in 2006 for an initial period of 5 years. This latter development was, in effect, part of a joint Anglo-Scottish action to prevent the overexploitation of the Solway Firth's highly valued cockle fishery, with the Cumbria Sea Fishery Committee as the partner south of the border.
5.15 The earlier lack of enthusiasm and opportunity for effective inshore fisheries management has been redeemed by the decision in 2009 to set up Inshore Fisheries Groups ( IFG s) as a delayed response to a review by the previous Scottish administration conducted in 2004. The first three IFG pilots in the Outer Hebrides, Clyde and South East were established in early 2008, quickly followed by a further three - North West, Mull and Small Islands and Moray Firth. There are as yet no plans to introduce the remaining six IFG s. Comprising representatives from the local commercial fishing industries, and with the support of an advisory committee with a broader range of stakeholder interests, the principal task of the IFG is to draw up a local fisheries management plan for its own district. The first of these is expected to be presented in the summer of 2010. Although IFG s are expected to oversee the progress of the plan's implementation there is as yet no plan to give them independent powers to frame and implement the necessary regulations. Marine Scotland will remain responsible for designing and implementing any legislation.
5.16 While the Commission has sought to ensure that the enforcement of Community regulations are subject to the same standards across the EU , most recently by the creation in 2007 of the Community Fisheries Control Agency based in Vigo, day to day responsibility for enforcement rests with the member states. In Scotland this has been a devolved responsibility since the designation in 1991 of the Scottish Fisheries Protection Agency ( SFPA ) as an executive agency of the then Scottish Office to ' monitor the fishing industry's compliance with UK , EU and international fishery laws … within British Fishery Limits around Scotland and beyond … '. With resources that include two aircraft, four patrol vessels and a sophisticated VMS tracking system, together with a complement of 300 staff of whom 140 are sea going personnel and 150 shore based officers (including headquarters staff in Edinburgh), the SFPA is responsible for monitoring vessels at sea and in port for compliance with EU , UK /Scottish and local regulations. Failure to comply may result in warnings, fixed administrative penalties introduced in 2007 or in charges before a criminal court. Although new regulations inevitably increase the burden on the enforcement body, certain significant events have tended to alter the way in which the enforcement organisation (Marine Scotland Compliance) works. Most notably, the introduction of registered landing ports and the registration of buyers and sellers legislation in 2006 has helped to realign the focus of their activity away from the point of landing inspection and towards greater auditing of buyers' and sellers' sales notes.
5.17 In one other important aspect - a joint initiative with the fishing industry - the Scottish Government has demonstrated the member state's ability to influence the direction of fisheries policy. Since 2007 a voluntary system of real time closures has been developed to protect concentrations of spawning and juvenile cod in the North Sea. Skippers are encouraged to notify Marine Scotland of areas where high abundance of cod is encountered. Where sampling confirms these observations, the areas are closed for a limited period of 21 days; thereafter they are automatically reopened to normal fishing. In 2009, a total of 144 real time closures were used. The assumed benefits to the CRP in terms of reduced mortality of cod earned the Scottish demersal fleet 'additional' fishing days in 2010 under the Conservation Credits Scheme.
5.18 A key feature of any system of governance is the interconnection between the central government and all other associations, organisations and agencies concerned with the fishing industry that can actively contribute to the shaping of fisheries policy. Scottish administrations, whether under the Scottish Office or the Scottish Government have always fostered an 'open door' approach and promoted good working relations with representatives of the industry. What has been lacking is a closer integration between the various interests or bodies that make up and/or service the fishing industry. Recently the Scottish Government has taken two important steps towards creating that integration. In 2008 it established the Scottish Fisheries Council ( SFC ) with a wide range of stakeholders to provide the mechanism by which government can develop and implement policies in partnership with stakeholders. The second initiative which was introduced to support the integration of wider marine policy was the establishment of Marine Scotland in 2009. This has brought together all the major marine related departments, including the former
semi-independent FRS and SFPA , into a single overarching department and largely under one roof.
5.19 The governance of Scotland's fisheries probably stands on the brink of further major changes at the start of the new decade. Reform of the CFP could bring key areas of decision making much closer to the member states. And the challenges of future fisheries management that are set out in the third part of our report may require further modifications to the present relationships and structures, as will be argued in Chapter 13. The present Scottish Government has already given a clear indication of the direction of change based on its recent moves to encourage closer integration. Its model of co-management may, however, need further development. Now based essentially on open negotiations with its industry partners, it will probably need in future to give the fishing industry a much greater share of the responsibility for management.