Wellboats
Section 5 - Control and monitoring of operations of wellboats
16.Section 4 defines “wellboat” for the purposes of Chapter 2 in Part 1 of the Act, and “farmed fish” for the purposes of section 4. Section 4(1), as read with section 4(2) and (3), defines “wellboat” as meaning a vessel containing a tank or well for holding water in which live farmed fish may be taken and subsequently kept for transportation, storage, slaughter, grading or treatment.
Section 5 - Control and monitoring of operations of wellboats
17.Section 5(1) enables the Scottish Ministers to make provision, in regulations, for or about controlling and monitoring the operation of any wellboat in Scotland. Section 5(2) contains provisions detailing the matters which may be provided for in regulations under section 5(1), including the measures that require to be taken to control the risk of the spread of parasites, etc as a result of wellboat operations and the specification of types of equipment that require to be installed in wellboats. Section 5(3) enables regulations under section 5(1) to impose requirements on the master, owner or charterer of a wellboat, as the case may be. Section 5(5) makes it an offence, punishable on summary conviction by a fine of up to level 4 on the standard scale (section 5(8)), for a person to contravene any of the provisions of section 5(1) regulations, or fails to take any action required of them under those regulations. In cases where a section 6 enforcement notice has been served upon a person charged with an offence under section 5(5), section 5(6) prevents proceedings being taken against that person. Section 5(7) creates a reasonable excuse defence for persons charged with an offence under section 5(5). For example, the master of a wellboat may temporarily be unable to comply with requirements under the regulations on equipment where there has been an unforeseen and unpreventable delay in installation, or where installed equipment intended to reduce the spread of parasites is under repair.
Section 6 - Enforcement notices
18.Section 6 makes provision for the service of enforcement notices in relation to failure to comply with the requirements of regulations made under section 5(1).
19.Where the Scottish Ministers are satisfied a person has failed or is failing to comply with any requirements imposed upon that person in regulations made under section 5, they may serve an enforcement notice upon that person. That notice must specify the matters referred to in section 6(3), and Ministers may decide to publish its service (section 6(4)). Where an enforcement notice has been served by the Scottish Ministers, the person upon whom it has been served may appeal against the notice to the sheriff within seven days of the service of the notice (section 6(5)). Section 6(7) provides that the lodging of a timeous appeal stops the effect of the notice, until such time as the appeal is withdrawn or determined.
20.Section 6(8) provides that upon hearing an appeal, the sheriff may make such order as he or she considers appropriate as regards the notice, and the sheriff’s decision in the matter is final. Where an appeal is not upheld (i.e. is unsuccessful), section 6(9) provides that the sheriff may specify a date by which the action specified in the enforcement notice must be undertaken. For example, an appeal is made in respect of an enforcement notice which specifies 24 April 2015 as the date by which specified works require to be completed. The appeal is not upheld, and the sheriff specifies 26 May 2016 as the new completion date. The latter date prevails, and the specified works will require to be completed by 26 May 2016.
21.It is an offence, punishable upon summary conviction by a fine of up to Level 4 on the standard scale, for a person upon whom an enforcement notice has been served to fail to comply with the requirements of a notice - section 6(10) and (12). Section 6(11) makes provision for a reasonable excuse defence for persons charged with an offence under section 6(10).
Section 7 - Marine enforcement officers’ functions
22.Section 7 contains provisions in relation to the enforcement of regulations made under section 5(1) and enforcement notices served under section 6.
23.Section 7(1) enables marine enforcement officers (MEO), as defined by section 63 to exercise the powers available in Part 7 and section 150 of the Marine (Scotland) Act 2010, for the purpose of enforcing regulations made under section 5(1). Section 7(2) authorises such officers to take any action the officer considers necessary in order to fulfil the requirements of an enforcement notice served by the Scottish Ministers under section 6. Section 7(6) enables the Scottish Ministers to recover any costs incurred by the marine enforcement officer in pursuance of the provisions of section 7(2).
24.Section 7(3)(a) modifies the effect of sections 151 to 155 of the Marine (Scotland) Act 2010 such that references in those sections to the powers conferred by Part 7 of the 2010 Act are to be read as including a reference to those powers as applied by section 7(1) (to enforce section 5 regulations) and as conferred by section 7(2) (to take action to meet the requirements of an enforcement notice under section 6). For example, in practice this means that, where a MEO wishes to exercise search or examination powers available under Part 7 of the 2010 Act in order to determine whether a person has complied with regulations under section 5, the officer may be required by the person to produce evidence of the officer’s authorisation to exercise the power in question (section 151 of the 2010 Act).
25.Section 7(3)(b) makes equivalent provision as regards references to the functions of a marine enforcement officer. Sections 151 to 155 of the Marine (Scotland) Act 2010 are modified such that references in those sections to the functions under the 2010 Act of MEOs are to be read as including a reference to those functions as applied by section 7(1) (to enforce section 5 regulations) and as conferred by section 7(2) (to take action to meet the requirements of an enforcement notice under section 6). For example, in practice this means that a MEO who takes action to fulfil the requirements of an enforcement notice issued under section 6 is not liable in civil or criminal proceedings for anything the officer did as regards that action (section 154 of the 2010 Act).
26.Section 7(4) makes provision in relation to the geographical limits of a MEO’s powers, specifying that those powers are exercisable in the Scottish marine area (as defined in section 1 of the 2010 Act) and any other part of Scotland. Section 7(7) contains a definition for the purposes of this section.
Section 8 - Power to detain well boats in connection with court proceedings
27.Section 8 provides an enforcement power for MEOs to detain wellboats in connection with court proceedings.
28.Section 8(2) provides that an MEO may take, or may arrange for others to take, a wellboat and its crew to the nearest convenient port for the purposes of detaining it. It allows an MEO to give instructions to anyone who appears to be in charge of the vessel to take it and its crew, to port.
29.Section 8(4) and (5) requires an MEO to serve a notice of detention on the person who appears to be in charge of the wellboat, which must include the reasons for detaining it and the circumstances under which it may be released. A notice of detention under section 9(4) must be withdrawn if any ground of release specified in section 9(5).
Section 9 - Release of wellboat detained under section 8
30.Section 9(2) sets out the circumstances under which a wellboat detained under section 8 is no longer to be treated as detained under that section. This includes where a notice of detention is withdrawn by an MEO, where a sheriff orders the release of the vessel under section 10, proceedings taken against the master, owner, or charterer have concluded, or the court has exercised any power it has to order the wellboat to be detained.
Section 10 - Power of sheriff to order release of wellboats
31.Section 10 provides a process allowing the owners of a wellboat detained under section 8 to apply to a sheriff for an order releasing the vessel from detention. A master, an owner or charterer of a wellboat may apply under section 10(2) to a sheriff seeking the release of the wellboat from detention. A sheriff may order the release of the vessel if satisfied that any of the grounds given in section 10(4) apply. These are that the continued detention of the wellboat is no longer necessary to secure the attendance of the master, owner, or charterer at court, or that there are no grounds for believing that the court would order the wellboat to be detained at any court proceedings as envisaged under section 8(1)(b)(ii).
