Aquaculture and Fisheries (Scotland) Act 2013

(3A) The appropriate authority may, in granting consent for the purposes of subsection (3)(b) above, impose conditions or requirements. (3B) A person shall be guilty of an offence if the person— (a) acts in contravention of any such condition or requirement; or (b) fails to take any action required of the person by any such condition or requirement. (3C) It is a defence for a person charged with an offence under subsection (3B)(b) above to show that the person had a reasonable excuse for failing to take the action mentioned in that subsection.

,

• (c) after subsection (4) insert—

(4A) Subsection (4) is subject to provision made in regulations under section 33B of this Act.

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• (3) After section 33A insert—

(33B) (1) This section applies to the functions of the appropriate authority under section 33A(3)(b) and (3A) of this Act (the “consenting functions”) so far as the functions may be carried out by district salmon fishery boards. (2) The Scottish Ministers may by regulations— (a) provide for the consenting functions to be carried out by the Scottish Ministers instead of district salmon fishery boards in specified cases or circumstances, (b) provide for applications made to district salmon fishery boards for consent under section 33A of this Act to be referred to the Scottish Ministers in specified cases or circumstances, (c) in relation to an application referred to the Scottish Ministers by virtue of provision made under paragraph (b) above, provide for the Scottish Ministers— (i) to determine the application and to carry out the consenting functions in relation to the application, or (ii) to issue directions to the district salmon fishery board to which the application was made about the determination of the application and the carrying out of the consenting functions in relation to the application. (3) Regulations under subsection (2) above may— (a) make different provision for different purposes, including different provision for— (i) different district salmon fishery districts, or (ii) different inland waters or parts of such waters, (b) include incidental, supplemental, consequential, transitional, transitory or saving provision. (4) In subsection (2) above, “specified” means specified in regulations under that subsection.

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Offences exempted by permission or consent: power to attach conditions, etc.

33

• (1) The Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 is amended in accordance with this section.

• (2) In section 27 (exemption from certain offences: salmon)—

• (a) after subsection (1) insert—

(1A) In granting permission under subsection (1) above, a district salmon fishery board or (as the case may be) the Scottish Ministers may impose conditions or requirements. (1B) A person commits an offence if the person— (a) acts in contravention of any such condition or requirement; or (b) fails to take any action required of the person by any such condition or requirement. (1C) It is a defence for a person charged with an offence under subsection (1B)(b) above to show that the person had a reasonable excuse for failing to take the action mentioned in that subsection. (1D) A person who commits an offence under subsection (1B) above is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

,

• (b) in subsection (3), after “permitted” insert “ , any conditions or requirements imposed under subsection (1A) above ”.

• (3) In section 28 (exemptions: fish other than salmon), after subsection (2) insert—

(3) In granting permission under subsection (1) above, the Scottish Ministers may impose conditions or requirements. (4) A person commits an offence if the person— (a) acts in contravention of any such condition or requirement; or (b) fails to take any action required of the person by any such condition or requirement. (5) It is a defence for a person charged with an offence under subsection (4)(b) above to show that the person had a reasonable excuse for failing to take the action mentioned in that subsection. (6) A person who commits an offence under subsection (4) above is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

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• (4) In section 30 (exemptions in relation to fish farming), after subsection (2) insert—

(2A) In granting consent under subsection (2) above, the Scottish Ministers may impose conditions or requirements. (2B) A person commits an offence if the person— (a) acts in contravention of any such condition or requirement; or (b) fails to take any action required of the person by any such condition or requirement. (2C) It is a defence for a person charged with an offence under subsection (2B)(b) above to show that the person had a reasonable excuse for failing to take the action mentioned in that subsection. (2D) A person who commits an offence under subsection (2B) above is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

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Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003: Crown application

Application of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 to the Crown

34

For section 67 of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 (Crown application) substitute—

(67) (1) This Act binds the Crown and applies in relation to Crown land as it applies in relation to any other land. (2) No contravention by the Crown of any provision made by or under this Act makes the Crown criminally liable. (3) But the Court of Session may, on the application of the Lord Advocate, declare unlawful any act or omission of the Crown which constitutes such a contravention. (4) Despite subsection (2), any provision made by or under the provisions of this Act applies to persons in the public service of the Crown as it applies to other persons. (5) For the purposes of subsection (1), “Crown land” means land an interest in which— (a) belongs to Her Majesty in right of the Crown or in right of Her private estates, (b) belongs to an office-holder in the Scottish Administration or a Government department or is held in trust for Her Majesty for the purposes of the Scottish Administration or a Government department. (6) The powers conferred by sections 54(1), 64(1)(a) and 64A(1)(c) are exercisable in relation to land an interest in which belongs to Her Majesty in right of Her private estates only with the consent of a person appointed by Her Majesty under the Royal Sign Manual or, if no such appointment is made, by the Scottish Ministers. (7) In this section— (a) references to Her Majesty's private estates are to be construed in accordance with section 1 of the Crown Private Estates Act 1862, (b) “Government department” means a department of the United Kingdom government. (8) For the purposes of this section, “land” includes salmon fisheries.

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PART 3 — Sea fisheries

Enforcement of sea fisheries legislation

Powers of British sea-fishery officers to enforce sea fisheries legislation

35

• (1) For the purposes of enforcing the sea fisheries legislation, a British sea-fishery officer has—

• (a) the common enforcement powers conferred by Part 7 of the Marine (Scotland) Act 2010, and

• (b) the powers conferred by sections 36 and 39.

• (2) Subject to subsection (3), the powers which a British sea-fishery officer has by virtue of subsection (1) for the purposes of enforcing the sea fisheries legislation may be exercised—

• (a) in the Scottish enforcement area, and

• (b) in relation to any Scottish fishing boat wherever it may be.

• (3) Those powers may not be exercised in relation to any British warship (that is, any ship belonging to Her Majesty and forming part of Her Majesty's armed forces).

• (4) The powers which a British sea-fishery officer has by virtue of subsection (1) are without prejudice to any other powers exercisable by the officer for the purposes of enforcing the sea fisheries legislation.

• (5) However, the officer may exercise any such other power only in a case where the officer is unable to exercise a power which the officer has by virtue of subsection (1).

• (6) So far as necessary for the purposes, or in consequence, of the exercise of the powers referred to in subsection (1)(a), references in Part 7 of the Marine (Scotland) Act 2010 to a marine enforcement officer are to be read as including references to a British sea-fishery officer.

• (7) Sections 151 to 155 of the Marine (Scotland) Act 2010 (duties and liabilities of, and offences in relation to, marine enforcement officers) have effect as if—

• (a) any reference to a power conferred by Part 7 of that Act included a reference to—

• (i) such a power as applied by subsection (1)(a), and

• (ii) the powers conferred by sections 36 and 39, and

• (b) any reference to a marine enforcement officer's functions under that Act included a reference to the functions of a British sea-fishery officer under—

• (i) Part 7 of that Act as applied by subsection (1)(a), and

• (ii) sections 36 and 39.

Detention of vessels in connection with court proceedings

Power to detain vessels in connection with court proceedings

36

• (1) This section applies where—

• (a) a British sea-fishery officer has reasonable grounds for suspecting that an offence under the sea fisheries legislation has been committed by the master, an owner or a charterer of a vessel (referred to as “A”), and

• (b) the officer reasonably believes that—

• (i) if proceedings are taken against A for the offence, there is a real risk that A will not attend court unless the vessel is detained under this section, or

• (ii) if A is convicted of the offence and the court by or before which A is convicted imposes a fine on A, it is likely that the court will order the vessel to be detained.

• (2) Where this section applies, a British sea-fishery officer may—

• (a) take, or arrange for another person to take, the vessel and its crew to the port that appears to the officer to be the nearest convenient port, or

• (b) require any person who is for the time being in charge of the vessel to take it and its crew to that port.

• (3) When the vessel has been taken to a port, the officer may—

• (a) detain it there, or

• (b) require the person for the time being in charge of it to do so.

• (4) A British sea-fishery officer who detains a vessel under this section must, if it is reasonably practicable to do so, serve a notice on the person who is for the time being in charge of the vessel.

• (5) The notice must state—

• (a) the reasons for detaining the vessel, and

• (b) the circumstances in which the vessel may be released.

Release of vessel detained under section 36

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• (1) This section applies where a vessel is being detained under section 36.

• (2) The vessel ceases to be detained under that section if one of the following things occurs—

• (a) the notice of detention is withdrawn,

• (b) a sheriff orders the release of the vessel under section 38,

• (c) any proceedings taken against the master, owner or charterer of the vessel have concluded,

• (d) the court referred to in section 36(1)(b)(ii) exercises any power it has to order the vessel to be detained.

• (3) A notice of detention is withdrawn by the service by a British sea-fishery officer of a further notice on the person who is for the time being in charge of the vessel, stating that the vessel is released.

• (4) If any of the grounds of release mentioned in subsection (5) applies, then any notice of detention must be withdrawn as soon as possible.

• (5) The grounds of release are—

• (a) that a procurator fiscal has decided not to take any proceedings against the master, owner or charterer of the vessel in respect of any offence in relation to which the vessel was detained,

• (b) where a fixed penalty notice has been issued in respect of such an offence, that the appropriate fixed penalty has been paid,

• (c) that there are no grounds for believing that any person referred to in paragraph (a) against whom proceedings have been, or may be, taken will fail to attend court,

• (d) that there are no grounds for believing that the court referred to in section 36(1)(b)(ii) will order the vessel to be detained.

• (6) In this section, “notice of detention” means a notice served under section 36(4).

Power of sheriff to order release of vessels

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• (1) This section applies where a vessel is being detained under section 36.

• (2) If, on an application to a sheriff by the master, an owner or a charterer of the vessel, the sheriff is satisfied as to either of the matters mentioned in subsection (4), the sheriff may order that the vessel be released.

• (3) An application under subsection (2) is to be made by way of summary application.

• (4) Those matters are that—

• (a) the continued detention of the vessel under section 36 is not necessary to secure that the master, an owner or a charterer of the vessel will attend court, or

• (b) there are no grounds for believing that the court referred to in subsection (1)(b)(ii) of that section will order the vessel to be detained.

Inspection and seizure of objects used in commercial sea fishing

Power to inspect and seize objects

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• (1) A British sea-fishery officer may inspect any object which the officer reasonably believes has been, or is being, used for or in connection with commercial sea fishing.

• (2) The officer may lift an object out of the sea for the purpose of inspecting it under this section.

• (3) A British sea-fishery officer who has inspected an object under this section may seize the object.

• (4) The power conferred by subsection (3) may be exercised only—

• (a) for the purpose of determining whether an offence under the sea fisheries legislation has been, or is being, committed, or

• (b) in relation to an object that the officer reasonably believes to be evidence of the commission of such an offence.

• (5) If, having inspected an object under this section, the officer decides not to seize it under subsection (3), the officer must, if it is reasonably practicable to do so, replace the object in the location where it was found.

• (6) If it is not reasonably practicable to replace the object in accordance with subsection (5), the officer may seize the object until such time as it may be collected by its owner.

• (7) A power conferred by this section to seize an object includes power to seize—

• (a) anything that is attached to the object,

• (b) anything that is contained in the object.

• (8) A reference in this section to replacing an object includes, in the case of fishing gear, a reference to re-setting the gear in the same way in which it was placed in the sea.

• (9) Anything seized under this section is to be delivered to the Scottish Ministers as soon as reasonably practicable.

• (10) In this section, “commercial sea fishing” means—

• (a) any activity for which a licence is required by virtue of an order under section 4 (licensing of fishing boats) of the Sea Fish (Conservation) Act 1967,

• (b) any activity regulated by an order—

• (i) under section 1 (power to make orders as to fisheries for shellfish) of the Sea Fisheries (Shellfish) Act 1967, and

• (ii) to which section 2 (right of several fishery) or 3 (right of regulating a fishery) of that Act applies, and

• (c) any activity regulated by an order under section 1 (general power to prohibit sea fishing in specified areas) of the Inshore Fishing (Scotland) Act 1984.

• (11) The Scottish Ministers may by order modify the definition of “commercial sea fishing” in subsection (10).

Reports of inspections under section 39

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• (1) This section applies where a British sea-fishery officer inspects an object under section 39.

• (2) The officer must prepare a report in relation to the inspection.

• (3) The report must state—

• (a) the date and time of the inspection,

• (b) the identity of the officer who carried out the inspection, and

• (c) how the officer may be contacted.

• (4) In the case of an object seized under section 39(3) or (6), the report must also state—

• (a) what has been seized,

• (b) the reasons for its seizure, and

• (c) any further action that it is proposed will be taken in relation to the object.

• (5) Where the object has not been seized under section 39(3) or (6), the officer must, if it is reasonably practicable to do so, attach a copy of the report to the object.

• (6) If it is not reasonably practicable to do so, the officer must serve a copy of the report on every person who appears to the officer to be an owner of the object.

• (7) In a case where the officer, after taking reasonable steps to do so, is unable to identify any person as an owner of the object, the officer must take such steps as the officer thinks fit to bring the contents of the report to the attention of persons likely to be interested in it.

• (8) Where—

• (a) the object has been seized under section 39(3), and

• (b) one of the conditions in subsection (9) is satisfied,

the Scottish Ministers must serve a copy of the report on every person who appears to them to be an owner of the object.

• (9) The conditions are—

• (a) that a procurator fiscal has decided not to take any proceedings in respect of any offence in relation to which the object was seized,

• (b) where a fixed penalty notice has been issued in respect of such an offence, that the appropriate fixed penalty has been paid,

• (c) that any proceedings taken in respect of such an offence have concluded.

• (10) Where the object has been seized under section 39(6), the Scottish Ministers must serve a copy of the report on every person who appears to the Ministers to be an owner of the object at the same time as they serve a notice of collection on that person under section 42.

• (11) In a case where the Scottish Ministers, after taking reasonable steps to do so, are unable to identify any person as an owner of the object—

• (a) the reference in this section to a requirement for the Scottish Ministers to serve a copy of the report on such a person is to be read as a reference to a requirement to take such steps as the Ministers think fit to bring the contents of the report to the attention of persons likely to be interested in it, and

• (b) the reference in subsection (10) to serving a notice of collection under section 42 is to be read as a reference to taking the steps referred to in subsection (5) of that section.

Retention of objects seized under section 39(3)

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• (1) An object seized by a British sea-fishery officer under section 39(3) may be retained by the Scottish Ministers.

• (2) If any of the grounds of release in subsection (3) applies, the Scottish Ministers must, as soon as is reasonably practicable, make the object available for collection.

• (3) The grounds of release are—

• (a) that a procurator fiscal has decided not to take proceedings in respect of any offence in relation to which the object was seized,

• (b) where a fixed penalty notice has been issued in respect of such an offence, that the appropriate fixed penalty has been paid,

• (c) that any proceedings taken in respect of such an offence have concluded without an order for forfeiture having been made in respect of the object.

• (4) Subsection (2) does not apply if the object is liable to forfeiture under section 46.

• (5) Any reference in this section to an object seized under subsection (3) of section 39 includes a reference to anything seized by virtue of subsection (7) of that section.

Disposal of objects seized under section 39

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• (1) This section applies to—

• (a) an object seized under section 39(3) which the Scottish Ministers—

• (i) no longer wish to retain for any purpose, or

• (ii) are required to make available for collection by virtue of section 41,

• (b) an object seized under section 39(6).

• (2) In this section, “notice of collection” means a notice stating that—

• (a) the object specified in the notice is available to be collected from the location specified in the notice, and

• (b) if the object is not collected before the end of the period of 3 months beginning with the date specified in the notice, the Scottish Ministers will dispose of the object.

• (3) The Scottish Ministers must serve a notice of collection on every person who appears to them to be an owner of the object.

• (4) The Scottish Ministers may take any other steps they think fit to notify every such person that the object is available to be collected.

• (5) If the Scottish Ministers, after taking reasonable steps to do so, are unable to identify any person as an owner of the object in order to serve a notice of collection, the Scottish Ministers must take such steps as they think fit to bring the information contained in the notice to the attention of persons likely to be interested in it.

• (6) If the Scottish Ministers comply with subsection (3) or (as the case may be) (5), they may, at the end of the period mentioned in subsection (2)(b), dispose of the object in whatever way they think fit.

• (7) Any reference in this section to an object seized under subsection (3) or (6) of section 39 includes a reference to anything seized by virtue of subsection (7) of that section.

Retention and disposal of property seized by BSFOs

Retention of property seized by British sea-fishery officers

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• (1) This section applies to property—

• (a) seized by a British sea-fishery officer in the exercise of any power conferred by the sea fisheries legislation, other than an object seized under section 39, and

• (b) which was seized—

• (i) in the Scottish enforcement area, or

• (ii) on board a Scottish fishing boat.

• (2) The officer must deliver the property to the Scottish Ministers as soon as reasonably practicable.

• (3) Subsection (2) is subject to paragraph 13 of schedule 2.

• (4) The Scottish Ministers may retain the property.

• (5) If any of the grounds of release in subsection (6) applies, the Scottish Ministers must, as soon as is reasonably practicable, make the property available for collection.

• (6) The grounds of release are—

• (a) that a procurator fiscal has decided not to take proceedings in respect of any offence in relation to which the property was seized,

• (b) where a fixed penalty notice has been issued in respect of such an offence, that the appropriate fixed penalty has been paid,

• (c) that any proceedings taken in respect of such an offence have concluded without an order for forfeiture having been made in respect of the property.

• (7) Subsection (5) does not apply if the property is liable to forfeiture under section 46 or 47.

Power of Scottish Ministers to sell seized fish in their possession

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• (1) The Scottish Ministers may sell any fish that are being retained by them under section 43.

• (2) Any power which a court has to order the forfeiture of any such fish may instead be exercised in relation to the proceeds of any sale of the fish under this section.

• (3) Subject to subsection (6), the proceeds of any sale under this section may be retained by the Scottish Ministers until such time as—

• (a) a court exercises any power it has to order the forfeiture of the proceeds, or

• (b) any of the grounds of release mentioned in subsection (4) applies.

• (4) The grounds of release are—

• (a) that a procurator fiscal has decided not to take proceedings in respect of any offence in relation to which the fish were seized,

• (b) where a fixed penalty notice has been issued in respect of such an offence, that the appropriate fixed penalty has been paid,

• (c) that any proceedings taken in respect of such an offence have concluded without any order for forfeiture having been made.

• (5) If any of the grounds of release mentioned in subsection (4) applies, the Scottish Ministers must, as soon as is reasonably practicable, release the proceeds of sale to any person who appears to the Scottish Ministers to have been an owner of the fish at the time of the seizure of the fish.

• (6) If the proceeds of sale are still in the Scottish Ministers' possession after the end of the period of 6 months beginning with the date on which the fish were sold, the Scottish Ministers may retain the proceeds and apply them in any manner they think fit.

• (7) The Scottish Ministers may exercise their power under subsection (6) to retain and apply the proceeds of sale only if it is not practicable at the time when the power is exercised to dispose of the proceeds by releasing them immediately to the person to whom they are required to be released.

• (8) Subject to subsection (11), any fish sold under this section must be sold at auction.

• (9) Before selling the fish, the Scottish Ministers must give the owner of the fish a reasonable opportunity to make representations as to the manner in which the fish are sold.

• (10) Subsection (11) applies if the owner of the fish requests that the fish be sold—

• (a) at a particular auction, or

• (b) by a method of sale other than by auction.

• (11) The Scottish Ministers must comply with the request unless they consider the request to be unreasonable.

• (12) The Scottish Ministers may deduct from the proceeds of sale any reasonable expenses incurred by them in selling the fish.

• (13) Where there is more than one owner of the fish, subsection (11) applies only if the request under subsection (10) is made by or on behalf of all the owners.

Disposal of property retained by Scottish Ministers under section 43

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• (1) This section applies to any property being retained by the Scottish Ministers under section 43 which they—

• (a) no longer wish to retain for any purpose, or

• (b) are required to make available for collection by virtue of that section.

• (2) In this section, a “notice of collection” is a notice stating that—

• (a) the property specified in the notice is available to be collected from the location so specified, and

• (b) if the property is not collected before the end of the period of 3 months beginning with the date specified in the notice, the Scottish Ministers will dispose of the property.

• (3) The Scottish Ministers must serve a notice of collection on every person who appears to them to be an owner of the property.

• (4) The Scottish Ministers may take any other steps they consider appropriate to notify every such person that the property is available to be collected.

• (5) If the Scottish Ministers, after taking reasonable steps to do so, are unable to identify any person as owning the property, they must—

• (a) if it is reasonably practicable to do so, serve a notice of collection on every person who is an appropriate person for the purposes of this subsection, and

• (b) take such steps as they think fit to bring the information contained in the notice of collection to the attention of persons likely to be interested in it.

• (6) For the purposes of subsection (5) each of the following is an “appropriate person”—

• (a) in the case of property seized from a vessel, the master, owner and charterer (if any) of the vessel at the time of the seizure of the property,

• (b) in the case of property seized from premises, every person who appears to the Scottish Ministers to have been an occupier of the premises at that time,

• (c) in any other case, the person (if any) from whom the property was seized.

• (7) If the Scottish Ministers comply with subsection (3) or (as the case may be) (5), they may, at the end of the period mentioned in subsection (2)(b), dispose of the property in whatever way they think fit.

Forfeiture

Forfeiture of prohibited items

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• (1) This section applies to any item—

• (a) seized by a British sea-fishery officer in the exercise of any power conferred by the sea fisheries legislation, and

• (b) which was seized—

• (i) in the Scottish enforcement area, or

• (ii) on board a Scottish fishing boat.

• (2) The item is liable to forfeiture under this section if the use of the item for sea fishing would in any circumstances constitute an offence under the law of Scotland.

• (3) An item forfeited under this section is to be forfeited to the Scottish Ministers who may dispose of it in any manner they think fit.

Forfeiture of fish failing to meet size requirements

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• (1) This section applies to any fish—

• (a) seized by a British sea-fishery officer in the exercise of any power conferred by the sea fisheries legislation, and

• (b) which were seized—

• (i) in the Scottish enforcement area, or

• (ii) on board a Scottish fishing boat.

• (2) The fish are liable to forfeiture under this section if, by virtue of the fish failing to meet requirements as to size, an offence under the law of Scotland has been committed in respect of the fish.

• (3) Any fish forfeited under this section are to be forfeited to the Scottish Ministers who may dispose of the fish in any manner they think fit.

Further provision about forfeiture under section 46 or 47

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Schedule 2, which makes further provision about forfeiture under section 46 or 47, has effect.

Inshore sea fishing

Contravention of orders prohibiting inshore sea fishing

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• (1) The Inshore Fishing (Scotland) Act 1984 is amended in accordance with this section.

• (2) In section 4 (offences), after subsection (1A) insert—

(1B) A person commits an offence if— (a) the person is found in, or in the immediate vicinity of, the area specified in an order under section 1 of this Act; (b) the person is found there at, or about, a time at which the prohibition under the order applies; (c) when so found, the person is in possession of such equipment, vehicle, apparatus or other gear or paraphernalia (including clothing) as may be used for the purpose of fishing in contravention of the order; and (d) it is reasonable to infer from those facts (either by themselves or taken together with other circumstances) that the person intends to fish in contravention of the order.

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• (3) After section 4 insert—

(4A) (1) Subsection (2) applies in proceedings against a person (“the accused”) for an offence under section 4(1) of this Act involving fishing in contravention of a prohibition contained in an order under section 1 of this Act (other than a prohibition under section 1(2)(d)). (2) It is to be presumed that the accused was, or had been, fishing in contravention of the order if— (a) it is proved that— (i) the accused was found in, or in the immediate vicinity of, the area specified in the order; (ii) the accused was found there at, or about, a time at which the prohibition under the order applies; and (iii) when so found, the accused was in possession of any of the things mentioned in subsection (3); and (b) it is reasonable to infer from those facts (either by themselves or taken together with other circumstances) that the accused was, or had been, fishing in contravention of the order. (3) The things are— (a) such equipment, vehicle, apparatus or other gear or paraphernalia (including clothing) as may be used for the purpose of fishing in contravention of the order; (b) sea fish the fishing for which is prohibited by the order. (4) Subsection (2) does not apply if evidence is adduced sufficient to raise an issue as to whether— (a) the accused's presence in, or in the vicinity of, the area specified in the order was for the purpose of fishing in contravention of the order; or (b) where the accused was found in possession— (i) of any of the things mentioned in paragraph (a) of subsection (3), the possession of the thing was for that purpose; (ii) of sea fish mentioned in paragraph (b) of that subsection, the fish were caught or taken in contravention of the order.

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Powers of entry

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• (1) The Inshore Fishing (Scotland) Act 1984 is amended in accordance with this section.

• (2) After section 6 insert—

(6A) (1) The powers conferred by this section are exercisable by British sea-fisheries officers in relation to any land for the purposes of enforcing the provisions of any order under section 1 of this Act and the provisions of section 3 of this Act. (2) Any such officer may at any time enter any land (including the foreshore) other than a dwelling house, on foot or in a vehicle, with or without persons assigned to the officer in the officer's duties, and for that purpose may— (a) open lockfast places; (b) remove any objects preventing the officer from gaining access to the land; (c) require any person who has placed an object in such a position as to prevent the officer from gaining access to the land to remove the object; (d) require the owner or occupier of the land to allow the officer access to the land. (3) Any officer who proposes to exercise the power of entry conferred by subsection (2) above must, if so requested, produce evidence of the officer's identity. (4) A person commits an offence if the person— (a) wilfully obstructs a British sea-fishery officer exercising a right of entry under subsection (2) above; (b) refuses or fails to comply with a requirement imposed by such an officer under paragraph (c) or (d) of that subsection. (5) It is a defence for a person charged with an offence under subsection (4)(b) above of failing to comply with a requirement mentioned in that subsection to show that the person had a reasonable excuse for failing to so comply. (6) A constable may arrest without warrant any person who the constable reasonably believes is committing or has committed an offence under subsection (4) above. (7) Subsection (6) above is without prejudice to any power of arrest conferred by law apart from that subsection. (8) A person who commits an offence under subsection (4) above is liable— (a) on summary conviction to a fine not exceeding the statutory maximum; (b) on conviction on indictment to a fine. (9) A British sea-fishery officer is not liable in any civil or criminal proceedings for anything done in purported exercise of the powers conferred on the officer by this section, if the court is satisfied that the act was done in good faith and that there were reasonable grounds for doing it.

.

• (3) After section 10 insert—

(10A) (1) Section 6A binds the Crown and applies in relation to Crown land as it applies in relation to other land. (2) Nothing in that section is to be taken as in any way affecting Her Majesty in Her private capacity. (3) No contravention by the Crown of that section makes the Crown criminally liable. (4) But the Court of Session may, on the application of the Lord Advocate, declare unlawful any act or omission of the Crown which constitutes such a contravention. (5) For the purposes of subsection (1), “Crown land” means land an interest in which— (a) belongs to Her Majesty in right of the Crown; (b) belongs to an office-holder in the Scottish Administration or a government department or is held in trust for Her Majesty for the purposes of the Scottish Administration or a government department. (6) In subsection (5), “an office-holder in the Scottish Administration” is to be construed in accordance with section 126(7)(a) of the Scotland Act 1998.

.

Enforcement of EU rules

Modification of the Fisheries Act 1981: enforcement of EU rules

51

• (1) Section 30 of the Fisheries Act 1981 (enforcement of Community obligations) is amended in accordance with this section.

• (2) In subsection (1)—

• (a) for paragraph (a) substitute—

(a) if any fishing boat within the Scottish Zone— (i) fishes in contravention of any such restriction; or (ii) fails to comply with any such obligation, the master, the owner and the charterer (if any) are each guilty of an offence;

,

• (b) after paragraph (a) insert—

(aa) if any Scottish fishing boat outside the Scottish Zone— (i) fishes in contravention of any such restriction; or (ii) fails to comply with any such obligation, the master, the owner and the charterer (if any) are each guilty of an offence; (ab) if any person in Scotland— (i) fishes in contravention of any such restriction; or (ii) fails to comply with any such obligation, the person is guilty of an offence;

,

• (c) in paragraph (b), for “such offences” substitute “ offences under paragraph (a), (aa) or (ab) of this subsection ”,

• (d) in subsection (3), after the definition of “the Ministers” insert—

“Scottish fishing boat” means a fishing boat which is registered in the register maintained under section 8 of the Merchant Shipping Act 1995 and whose entry in the register specifies a port in Scotland as the port to which the boat is to be treated as belonging; “Scottish Zone” has the same meaning as in the Scotland Act 1998 (see section 126(1) and (2) of that Act).

.

Supplementary

Conclusion of proceedings

52

• (1) This section applies for determining when any proceedings have concluded for the purposes of this Part.

• (2) Where proceedings are terminated by an appealable decision, they are not to be regarded as concluded—

• (a) until the end of the ordinary time for appeal against the decision, if no appeal in respect of the decision is brought within that time, or

• (b) if an appeal in respect of the decision is brought within that time, until the conclusion of the appeal.

• (3) Subsection (2) applies for determining when any proceedings on appeal are concluded for the purposes of paragraph (b) of that subsection as it applies for determining when the original proceedings are concluded.

• (4) Any reference in subsection (2) to a decision that terminates proceedings includes a reference to a verdict, sentence, finding or order that puts an end to the proceedings.

Interpretation of Part 3

53

• (1) In this Part—

• “appropriate fixed penalty” has the meaning given in section 27(2) of the Aquaculture and Fisheries (Scotland) Act 2007 (amount and payment of fixed penalty),

• “fish” includes shellfish,

• “fixed penalty notice” means a fixed penalty notice under section 25(1) of the Aquaculture and Fisheries (Scotland) Act 2007,

• “the Scottish enforcement area” means—Scotland, andthe Scottish zone,

• “Scottish fishing boat” means a fishing vessel which is registered in the register maintained under section 8 of the Merchant Shipping Act 1995 and whose entry in the register specifies a port in Scotland as the port to which the boat is to be treated as belonging,

• “the Scottish zone” has the same meaning as in the Scotland Act 1998 (see section 126(1) and (2) of that Act),

• “sea fisheries legislation” means, subject to subsection (2)—any enactment relating to sea fishing, including any enactment relating to fishing for shellfish, salmon or migratory trout, and any assimilated restrictions and assimilated obligations (within the meaning of schedule 1 of the Interpretation Act 1978 ) relating to sea fishing.

• (2) “Sea fisheries legislation” does not include—

• (a) the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003, or

• (b) any Order in Council under section 111 of the Scotland Act 1998 (regulation of Border rivers).

PART 4 — Shellfish

Protection of shellfish waters

Protection and improvement of shellfish waters

54

• (1) The Water Environment and Water Services (Scotland) Act 2003 is amended in accordance with this section.

• (2) After section 5 insert—

(5A) (1) The Scottish Ministers may by order (in this section, a “designation order”) designate an area of coastal water or transitional water as a shellfish water protected area for the purposes of this Part. (2) An area of coastal water or transitional water may be designated under subsection (1) only if the Scottish Ministers consider it necessary or desirable to do so for the protection or development of economically significant shellfish production. (3) The Scottish Ministers must review each designation order— (a) by 22 December 2019, and (b) by each date falling every 6 years (or such lesser period as the Scottish Ministers may determine) after 22 December 2019. (4) Subsection (3) applies to a designation order which comes into force after 22 December 2019 as if paragraph (a) were omitted. (5) A designation order which would, apart from this subsection, fall to be reviewed under subsection (3) by a particular date need not be reviewed by that date if the order came into force less than 6 months before that date; but must otherwise be reviewed in accordance with that subsection. (6) A designation order may identify the area of coastal water or transitional water by reference to a map prepared for the purposes of the order and laid before the Scottish Parliament. (7) The Scottish Ministers must send SEPA a copy of— (a) a designation order, and (b) any map prepared in pursuance of subsection (6).

.

• (3) In section 7 (register of protected areas), in subsection (3), before paragraph (a) insert—

(za) any shellfish water protected area,

.

• (4) In section 9 (environmental objectives and programmes of measures)—

• (a) in subsection (1), in paragraph (a)—

• (i) the words “each body of water in the district, and” become sub-paragraph (i) of that paragraph, and

• (ii) after that sub-paragraph insert—

(ii) each shellfish water protected area in the district, and

,

• (b) in subsection (7)—

• (i) after “objectives”” insert—

(a) in respect of any body of water,

,

• (ii) at the end insert

, and (b) in respect of a shellfish water protected area, includes (without prejudice to the definition in paragraph (a)) such objectives as SEPA considers necessary or desirable to improve or protect that area in order to support shellfish life and growth and to contribute to the high quality of shellfish products suitable for human consumption.

.

• (5) In section 11 (river basin management plans: publicity and consultation), in subsection (6), after paragraph (f) insert—

(fa) where any part of the river basin district has been designated as a shellfish water protected area, the Food Standards Agency,

.

• (6) In section 28 (interpretation of Part 1), in subsection (1), after the definition of “SEPA” insert—

“shellfish” includes crustaceans and molluscs of any kind, and includes any brood, ware, half-ware, spat or spawn of shellfish, “shellfish water protected area” means an area of coastal water or transitional water designated by order under section 5A(1),

.

Orders as to fisheries for shellfish

Power to make orders as to fisheries for shellfish

55

• (1) In section 1 of the Sea Fisheries (Shellfish) Act 1967 (power to make orders as to fisheries for shellfish), in subsection (1), for the words from “shellfish” to “Minister” substitute “ shellfish of any kind specified in the order ”.

• (2) In section 15 of the Sea Fisheries Act 1968 (amendments of Sea Fisheries (Shellfish) Act 1967)—

• (a) subsection (2) is repealed,

• (b) in subsection (3), for “that section” substitute “ section 1 of that Act ”.

Contravention of regulated fishery orders

56

• (1) The Sea Fisheries (Shellfish) Act 1967 is amended in accordance with this section.

• (2) In section 3 (effect of grant of right of regulating a fishery)—

• (a) after subsection (4) insert—

(4A) Subsection (4B) applies where an order under section 1 of this Act— (a) confers a right of regulating a fishery for any specified description of shellfish, and (b) imposes restrictions on, or makes regulations respecting, the dredging, fishing for and taking of any specified description of shellfish within the limits of the regulated fishery or any part of it. (4B) A person commits an offence if— (a) the person is found within the limits of, or in the immediate vicinity of, the regulated fishery, (b) the person is found there at, or about, a time at which the restrictions imposed or regulations made by the order apply, (c) when so found, the person is in possession of such equipment, vehicle, apparatus or other gear or paraphernalia (including clothing) as may be used for the purpose of dredging, fishing for and taking shellfish in contravention of the restrictions or regulations, and (d) it is reasonable to infer from those facts (either by themselves or taken together with other circumstances) that the person intends to dredge, fish for and take shellfish in contravention of the restrictions or regulations. (4C) A person who commits an offence under subsection (4B) is liable on summary conviction to a fine not exceeding £50,000.

,

• (b) in subsection (5), after “subsection (3)” insert “ or (4B) ”, and

• (c) in subsection (6), for “Subsection (1) of this section” substitute “ This section ”.

• (3) After section 3 insert—

(3A) (1) Subsection (2) applies in proceedings against a person (“the accused”) for an offence under section 3(3) of this Act involving dredging, fishing for and taking shellfish in contravention of restrictions imposed or regulations made by— (a) an order under section 1 of this Act, or (b) the grantee of such an order. (2) It is to be presumed that the accused was, or had been, dredging, fishing for and taking shellfish in contravention of the restrictions or regulations if— (a) it is proved that— (i) the accused was found within the limits of, or in the immediate vicinity of, the regulated fishery to which the order relates, (ii) the accused was found there at, or about, a time at which the restrictions or regulations apply, and (iii) when so found, the accused was in possession of any of the things mentioned in subsection (3), and (b) it is reasonable to infer from those facts (either by themselves or taken together with other circumstances) that the accused was, or had been, dredging, fishing for and taking shellfish in contravention of the restrictions or regulations. (3) The things are— (a) such equipment, vehicle, apparatus or other gear or paraphernalia (including clothing) as may be used for the purpose of dredging, fishing for and taking shellfish in contravention of the order, (b) shellfish the dredging, fishing for and taking of which is prohibited by the restrictions or regulations. (4) Subsection (2) does not apply if evidence is adduced sufficient to raise an issue as to whether— (a) the accused's presence within the limits of, or in the vicinity of, the regulated fishery to which the order relates was for the purpose of dredging, fishing for and taking shellfish in contravention of the restrictions or requirements, or (b) where the accused was found in possession— (i) of any of the things mentioned in paragraph (a) of subsection (3), the possession of the thing was for that purpose, (ii) of shellfish mentioned in paragraph (b) of that subsection, the shellfish were caught or taken in contravention of the restrictions or requirements.

.

Enforcement of orders: powers of entry

57

• (1) The Sea Fisheries (Shellfish) Act 1967 is amended in accordance with this section.

• (2) After section 4C insert—

(4CA) (1) For the purposes of exercising the powers conferred by sections 4A to 4C, and of enforcing the restrictions imposed by, or regulations made by, an order under section 1 conferring a right of regulating a fishery, a British sea-fishery officer may at any time enter land (including the foreshore) other than a dwelling house, and for that purpose may— (a) open lockfast places, (b) remove any objects preventing the officer from gaining access to the land, (c) require any person who has placed an object in such a position as to prevent the officer from gaining access to the land to remove the object, (d) require the owner or occupier of the land to allow the officer access to the land. (2) A British sea-fishery officer may— (a) exercise the power of entry under subsection (1) on foot or in a vehicle, (b) when exercising that power, take with the officer— (i) such persons as appear to the officer to be necessary, (ii) any equipment or material. (3) The power of entry under subsection (1)— (a) may not be exercised in relation to land in respect of which section 4B confers a power of entry, and (b) is without prejudice to the power of entry conferred by that section. (4) A British sea-fishery officer who proposes to exercise the power of entry conferred by subsection (1) must, if so required, produce evidence of the officer's identity.

.

• (3) In section 4D—

• (a) in subsection (1)—

• (i) for the words “or 4B(3) or (12)” substitute “ , 4B(3) or (12) or 4CA(2)(b) ”,

• (ii) for the words “or 4C” substitute “ , 4C or 4CA ”,

• (b) in subsection (2)(a), for the words “or 4B” substitute “ , 4B or 4CA ”,

• (c) after subsection (2) insert—

(2A) A constable may arrest without warrant any person who the constable reasonably believes is committing or has committed an offence under subsection (2) relating to— (a) a failure to comply with a requirement imposed under a power conferred by section 4CA, (b) obstructing a British sea-fishery officer in the exercise of such a power. (2B) Subsection (2A) above is without prejudice to any power of arrest conferred by law apart from that subsection.

.

• (4) In the title to section 4D, for “4C” substitute “ 4CA ”.

• (5) After section 24 insert—

(24A) (1) Section 4CA binds the Crown and applies in relation to Crown land as it applies in relation to other land. (2) Nothing in that section is to be taken as in any way affecting Her Majesty in Her private capacity. (3) No contravention by the Crown of section 4D(2) in respect of a failure to comply with a requirement under a power conferred by section 4CA makes the Crown criminally liable. (4) But the Court of Session may, on the application of the Lord Advocate, declare unlawful any act or omission of the Crown which constitutes such a contravention. (5) For the purposes of subsection (1), “Crown land” means land an interest in which— (a) belongs to Her Majesty in right of the Crown, (b) belongs to an office-holder in the Scottish Administration or a government department or is held in trust for Her Majesty for the purposes of the Scottish Administration or a government department. (6) In subsection (5), “an office-holder in the Scottish Administration” is to be construed in accordance with section 126(7)(a) of the Scotland Act 1998.

.

Power to appoint inspectors before making orders as to fisheries for shellfish

58

• (1) In Schedule 1 to the Sea Fisheries (Shellfish) Act 1967 (provisions with respect to making of orders under section 1)—

• (a) in paragraph 4(2), for the words from “may” to “be” substitute “ may as soon as reasonably practicable ”,

• (b) in paragraph 6(1), for the words “conveniently may be” substitute “ reasonably practicable ”.

• (2) The amendment made by subsection (1)(a) does not apply in relation to any application made for an order under section 1 of the Sea Fisheries (Shellfish) Act 1967 before the coming into force of this section.

PART 5 — Miscellaneous

Charging

Power to charge in connection with fisheries functions

59

• (1) The Scottish Ministers may by regulations make provision for or about the imposition of charges in connection with the carrying out of such fisheries functions as are specified in the regulations.

• (2) In this section, “fisheries functions” means—

• (a) functions of the Scottish Ministers under any legislation relating to—

• (i) fish farming or shellfish farming,

• (ii) salmon or freshwater fisheries,

• (iii) sea fishing, or

• (b) functions of any other person under any such legislation so far as the person is appointed or authorised by the Scottish Ministers for the purposes of enforcing, or otherwise ensuring compliance with, the legislation.

• (3) Regulations under subsection (1) may include provision—

• (a) specifying, or for determining, the amount of charges,

• (b) specifying, or for determining, the persons or types of person who are to pay charges,

• (c) specifying, or for determining, the circumstances in which charges are payable,

• (d) for making the carrying out of specified fisheries functions conditional on the payment of charges,

• (e) for the imposition of annual or other recurring charges,

• (f) for the reduction or waiver of, or exemptions from, charges,

• (g) for the recovery and collection of charges,

• (h) for the method and timing of payment of charges,

• (i) for determining disputes as to the amount of, or liability for, charges.

• (4) Regulations under subsection (1)—

• (a) may have the effect of requiring a person to pay a charge only if, and so far as, the person is someone in relation to whom a specified fisheries function has been, or is to be, carried out, and

• (b) must not have the effect of imposing a charge in a particular case that exceeds the reasonable costs incurred in the carrying out of a specified fisheries function in that case.

• (5) Before making regulations under subsection (1), the Scottish Ministers must consult such persons as they consider appropriate.

• (6) Regulations under subsection (1) may make different provision for—

• (a) different fisheries functions,

• (b) different persons or types of person.

• (7) Regulations under subsection (1) do not affect any power that the Scottish Ministers have apart from this section to—

• (a) impose fees or charges, or recover costs, in connection with the carrying out of any fisheries functions, or

• (b) provide for the imposition of such fees or charges or the recovery of such costs.

• (8) In this section, “legislation” means any—

• (a) enactment, or

• (b) assimilated direct legislation (within the meaning of section 20 of the European Union (Withdrawal) Act 2018) falling within section 3(2)(a) of that Act containing a assimilated obligation (within the meaning of schedule 1 of the Interpretation Act 1978) or a assimilated restriction

Fixed penalty notices

Fixed penalty notices

60

• (1) Part 4 of the Aquaculture and Fisheries (Scotland) Act 2007 (sea fisheries) is amended in accordance with this section.

• (2) In section 25 (issue of fixed penalty notices)—

• (a) in subsection (1), for “British sea-fishery” substitute “ fixed penalty ”,

• (b) in subsection (2)—

• (i) the words “is an offence” are repealed,

• (ii) for paragraphs (a) and (b) substitute—

(a) is an offence under the Sea Fisheries enactments in respect of which a person mentioned in paragraph (a) of subsection (2A) has functions, (b) is an offence under the marine protection and nature conservation legislation in respect of which a person mentioned in paragraph (b) of that subsection has functions, (c) is an offence under— (i) Part 4 of the Marine (Scotland) Act 2010 (marine licensing), or (ii) section 5(5) of the Aquaculture and Fisheries (Scotland) Act 2013 (control and monitoring of operation of wellboats), (d) in relation to a person mentioned in any of paragraphs (c) to (f) of that subsection, is an offence in respect of which the person has functions.

,

• (c) after subsection (2) insert—

(2A) The persons referred to in subsection (2) are— (a) a British sea-fishery officer, (b) a marine enforcement officer within the meaning of section 157(1) of the Marine (Scotland) Act 2010, (c) an inspector within the meaning of section 12 of this Act, (d) an inspector within the meaning of regulation 3(1) of the Aquatic Animal Health (Scotland) Regulations 2009 (S.S.I. 2009/85), (e) an inspector within the meaning of regulation 1(2) of the Animals and Animal Products (Import and Export) Regulations 2007 (S.S.I. 2007/194) who is appointed as mentioned in that regulation by the Scottish Ministers for purposes relating to fish farming or shellfish farming, (f) an authorised officer within the meaning of regulation 2(1) of the Animals and Animal Products (Examination for Residues and Maximum Residue Limits) Regulations 1997 (S.I. 1997/1729) appointed (whether solely or jointly) by the Scottish Ministers to act in matters arising under those Regulations relating to fish farming or shellfish farming or the products of either such type of farming. (2B) The Scottish Ministers may by order modify— (a) subsection (2) so as to amend the definition of “relevant offence”, (b) subsection (2A) so as to— (i) add or remove a description of a person to or from those for the time being listed in that subsection, (ii) vary a description of a person for the time being listed in that subsection. (2C) In subsection (2A)(e) and (f), “fish farming” and “shellfish farming” have the same meanings as in section 12. (2D) Despite subsection (1), a fixed penalty officer may not issue a notice in respect of a relevant offence that involves— (a) assault on a person mentioned in subsection (2A), (b) obstructing such a person in the exercise of the person's powers, (c) failure to comply with a requirement imposed, or instruction given, by such a person.

,

• (d) in subsection (3)—

• (i) after the definition of “British sea-fisheries officer” insert—

“fixed penalty officer” means a person appointed as such an officer by the Scottish Ministers;

,

• (ii) after the definition of “Sea Fisheries enactments” insert—

“the marine protection and nature conservation legislation” has the meaning given in section 132(2) of the Marine (Scotland) Act 2010;

.

• (3) In section 27 (amount and payment of fixed penalty)—

• (a) in subsection (1), for “80 per cent of level 4 on the standard scale” substitute “ £10,000 ”,

• (b) in subsection (2), for “British sea-fishery” substitute “ fixed penalty ”.

• (4) In section 31 (withdrawal of fixed penalty notice or expiry of period for paying), in subsection (1), for “British sea-fishery” substitute “ fixed penalty ”.

• (5) For the title of Part 4 substitute “ Fixed penalty notices ”.

• (6) The cross-heading immediately following that title is repealed.

• (7) For the cross-heading immediately preceding section 32, substitute the following Part title— “ PART 4A – Miscellaneous amendments of sea fisheries legislation ”.

Fixed penalty notices and civil sanctions under the Marine (Scotland) Act 2010

61

• (1) Schedule 2 to the Marine (Scotland) Act 2010 (further provision about civil sanctions under Part 4 (marine licensing)) is amended in accordance with this section.

• (2) For paragraph 1 (interpretation) substitute—

(1) In this schedule— - “civil sanction” means a fixed monetary penalty or a variable monetary penalty, - “fixed penalty notice” means a fixed penalty notice under section 25(1) of the Aquaculture and Fisheries (Scotland) Act 2007, - “fixed penalty officer” has the meaning given in section 25(3) of that Act.

.

• (3) In paragraph 2 (fixed monetary penalties: other sanctions), after sub-paragraph (2)(b) insert—

(c) a fixed penalty officer may not issue a fixed penalty notice to the person in respect of the act or omission giving rise to the fixed monetary penalty.

.

• (4) In paragraph 3 (variable monetary penalties: other sanctions), after sub-paragraph (b) insert—

(c) a fixed penalty officer may not issue a fixed penalty notice to the person in respect of the act or omission giving rise to the variable monetary penalty.

.

• (5) After paragraph 4, insert—

(4A) (1) Provision under section 46 must secure that, in a case where a fixed penalty notice is issued to a person in respect of a relevant offence, the Scottish Ministers may not— (a) serve on the person a notice of intent referred to in section 47(2)(a) in relation to an act or omission constituting the relevant offence, or (b) impose a fixed monetary penalty on the person in relation to an act or omission constituting the relevant offence. (2) Provision under section 48 must secure that, in a case where a fixed penalty notice is issued to a person in respect of a relevant offence, the Scottish Ministers may not— (a) serve on the person a notice of intent referred to in section 49(2)(a) in relation to an act or omission constituting the relevant offence, or (b) impose a variable monetary penalty on the person in relation to an act or omission constituting the relevant offence. (3) In this paragraph “relevant offence” has the meaning given in section 25(2) of the Aquaculture and Fisheries (Scotland) Act 2007.

.

PART 6 — General

Subordinate legislation

62

• (1) Any power of the Scottish Ministers to make an order or regulations under this Act includes power to make—

• (a) different provision for different purposes or different areas,

• (b) incidental, supplemental, consequential, transitional, transitory or saving provision.

• (2) The following orders and regulations are subject to the affirmative procedure—

• (a) regulations under section 59,

• (b) an order under section 64(1) containing provisions which add to, replace or omit any part of the text of an Act.

• (3) All other orders and regulations under this Act are subject to the negative procedure.

• (4) This section does not apply to an order under section 66(2).

Interpretation

63

In this Act, unless the context otherwise requires—

• “assimilated restriction” means a restriction that—was created or arose by or under the EU Treaties before IP completion day, andforms part of assimilated law,as modified from time to time,,

• “British sea-fishery officer” means a person who is a British sea-fishery officer by virtue of section 7(1) of the Sea Fisheries Act 1968,

• “disease” means a clinical or non-clinical infection with one or more aetiological agents in fish,

• ...

• ...

• “fish” means fish of any kind but does not, except in Part 3, include shellfish,

• “fish farm” means any place used for the purposes of fish farming,

• “fish farming” means the keeping of live fish with a view to their sale or to their transfer to other waters; but only where such activity is required to be authorised as an aquaculture production business under regulation 6 of the Aquatic Animal Health (Scotland) Regulations 2009 (S.S.I. 2009/85),

• “marine enforcement officer” has the same meaning as in section 157(1) of the Marine (Scotland) Act 2010,

• “parasite” has the meaning given in section 4(1) of the Aquaculture and Fisheries (Scotland) Act 2007,

• “pathogen” means an organism that causes or contributes to the development of a disease,

• ...

• “shellfish” includes crustaceans and molluscs of any kind, and includes any brood, ware, half-ware, spat or spawn of shellfish,

• “shellfish farm” means any place used for the purposes of shellfish farming,

• “shellfish farming” means the cultivation or propagation of shellfish with a view to their sale or their transfer to other waters or land; but only where such activity is required to be authorised as an aquaculture production business under regulation 6 of the Aquatic Animal Health (Scotland) Regulations 2009 (S.S.I. 2009/85).

Ancillary provision

64

• (1) The Scottish Ministers may by order make such incidental, supplemental, consequential, transitional, transitory or saving provision as they consider necessary or expedient for the purposes of, in consequence of, or for giving full effect to, any provision of this Act.

• (2) An order under this section may modify any enactment (including this Act), instrument or document.

Crown application

65

• (1) No contravention by the Crown of any provision made by or under this Act makes the Crown criminally liable.

• (2) But the Court of Session may, on the application of the Lord Advocate, declare unlawful any act or omission of the Crown which constitutes such a contravention.

• (3) Despite subsection (1), any provision made by or under the provisions of this Act applies to persons in the public service of the Crown as it applies to other persons.

Commencement

66

• (1) This Part, and sections 4, 22 and 53, come into force on the day after Royal Assent.

• (2) The remaining provisions of this Act come into force on such day as the Scottish Ministers may by order appoint.

• (3) An order under subsection (2) may include transitional, transitory or saving provision.

Short title

67

The short title of this Act is the Aquaculture and Fisheries (Scotland) Act 2013.

SCHEDULE 1

Making a control scheme: procedure

1

Where the Scottish Ministers propose to make a control scheme, they must serve on every person who carries on a business of fish farming or shellfish farming on whom the scheme proposes to impose any requirement—

• (a) a draft of the proposed scheme, and

• (b) a notice stating that any such person may, within 14 days of the service of the notice, object to the Scottish Ministers in such manner as may be specified in the notice to the draft control scheme or to any provision contained in it.

2

If no objection is duly made under paragraph 1, or if all objections so made are withdrawn, the Scottish Ministers may make the control scheme either in the form of the draft control scheme served under that paragraph or, subject to paragraph 4, with modifications.

3

If any objection duly made under paragraph 1 is not withdrawn, the Scottish Ministers—

• (a) must consider the objection, and

• (b) may make the control scheme either in the form of the draft control scheme served under that paragraph or, subject to paragraph 4, with modifications.

4

A control scheme may not be made with any modifications unless—

• (a) every person served with a copy of the draft control scheme under paragraph 1 has been served with a notice of the proposal to make the modification, and

• (b) every such person—

• (i) has either consented to the proposal, or

• (ii) has not, before the expiry of the period of 14 days beginning with the day of the service of the notice, notified the Scottish Ministers in writing that the person objects to it.

Variation or revocation of a control scheme: procedure

5

• (1) The Scottish Ministers may—

• (a) make a scheme varying a control scheme, or

• (b) revoke a control scheme.

• (2) The Scottish Ministers may exercise a power under sub-paragraph (1)—

• (a) on the application of a person who carries on a business of fish farming or shellfish farming on whom the control scheme has imposed any requirement, or

• (b) even if no such application is made.

6

Before making any variation or revocation such as is mentioned in paragraph 5(1), the Scottish Ministers must serve on every person who carries on a business of fish farming or shellfish farming on whom the control scheme has imposed any requirement—

• (a) a draft of the scheme varying the control scheme or (as the case may be) an intimation of the proposed revocation, and

• (b) a notice stating that any such person may, within 14 days of the service of the draft scheme or (as the case may be) the intimation, object to the Scottish Ministers in such manner as may be specified in the notice to the variation or revocation of the control scheme.

7

If no objection is duly made under paragraph 6, or if all objections so made are withdrawn, the Scottish Ministers may vary or revoke the control scheme (as the case may be).

8

If any objection duly made under paragraph 6 is not withdrawn, the Scottish Ministers—

• (a) must consider the objection, and

• (b) may—

• (i) make the variation, either in the form of the draft or, subject to paragraph 9, with modifications, or

• (ii) revoke the control scheme,

as the case may be.

9

A variation of a control scheme may not be made with any modification unless—

• (a) every person served with a copy of the draft scheme by virtue of paragraph 6 has been served with a notice of the proposal to make the modification, and

• (b) every such person—

• (i) has either consented to the proposal, or

• (ii) has not, before the expiry of the period of 14 days beginning with day of the service of the notice, notified the Scottish Ministers in writing that the person objects to it.

Objections

10

Notwithstanding anything in paragraph 3 or 8, the Scottish Ministers may—

• (a) require any person who has made an objection to state in writing the grounds for it, and

• (b) disregard the objection for the purposes of this schedule if they are satisfied that the objection is frivolous.

Making, varying or revoking a control scheme: notices

11

On making a control scheme, or on varying or revoking such a scheme, the Scottish Ministers must serve on every person on whom a notice was required to be served under any of the following provisions—

• (a) paragraph 1(b),

• (b) paragraph 4(a),

• (c) paragraph 6(b),

• (d) paragraph 9(a),

a notice stating that the scheme has been made or (as the case may be) that a variation or revocation of the scheme has been made.

Validity of control schemes

12

Subject to paragraph 13, the validity of a control scheme or of any variation or revocation of such a scheme may not at any time be questioned in any proceedings.

Appeals

13

• (1) Any person who carries on a business of fish farming or shellfish farming at a fish farm or shellfish farm to which a control scheme relates may appeal by way of summary application to a sheriff against—

• (a) a decision of the Scottish Ministers to—

• (i) make the control scheme,

• (ii) make a scheme varying the control scheme, or

• (iii) revoke the control scheme, or

• (b) the terms or conditions of the control scheme (including such a scheme as varied).

• (2) An appeal under sub-paragraph (1) must be lodged not later than 28 days after the date on which the person making the appeal received a notice under paragraph 11.

• (3) On an appeal under sub-paragraph (1), the sheriff may—

• (a) affirm the control scheme,

• (b) direct the Scottish Ministers to amend the scheme in such manner as the sheriff may specify,

• (c) direct the Scottish Ministers to revoke the scheme,

• (d) make such other order as the sheriff thinks fit.