Common Fisheries Policy and Animals (Amendment etc.) (EU Exit) Regulations 2019

Baroness Neville-Rolfe Excerpts

Wednesday 30th October 2019 Grand Committee

[Baroness Neville-Rolfe (Con)]

I thank my noble friend for his elegant and succinct summary of this long SI. I would like to ask a couple of questions. The first is about the enforcement of these fisheries rules. Page 14 has a reference to Article 23 and to projects involving “catches and discards” and so on. I remember from the time when I worked in the fisheries department, at what is now Defra, that enforcement of the rules is actually as important as the statutory framework itself. We are obviously moving from an EU-based system to a UK one, and in some cases to a devolved system. It may be beyond the reach of this SI, but can the Minister say anything reassuring about enforcement? Vessels will obviously come from other EU member states; they may not always be punctilious about discards and catches. Our own fishermen also need to be properly protected.

The second point is on the issue of errors, which we heard about in the previous debate and again here. Are any steps being taken, as part of the Brexit process and more generally, to minimise the amount of errors that there are in SIs? If an SI is wrong even in terms of one spelling mistake, my recollection is that you have to re-lay it. I found this to be a problem when I was in the business department, so I took steps to make sure that the SIs did not come through with errors in them. “Right first time” is obviously a good principle. Can anything be done in that area to help? I am sure that we will have a lot more SIs as work on Brexit continues into the more detailed areas.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I apologise to my noble friend Lord Gardiner and to the Committee for having missed the first 45 seconds of his elegant introduction. My noble friend Lady Chisholm dealt with her business faster than I anticipated, so I was caught in the corridor. I am the chairman of the Secondary Legislation Scrutiny Committee, which has looked at this instrument. Our report is in the papers for today’s meeting and our committee was obviously concerned about fishing, because fishing and fisheries policy is quite a hot topic on two grounds. One is that the “take back control” argument rides quite high in fishing; the other is the increased focus today on marine conservation, preservation, resources and so on. The committee also saw that this is a “made affirmative” instrument, and therefore has speedy passage under the European Union (Withdrawal) Act. One is always concerned about how and why it had to be done at this last minute, and so quickly, and whether it meets the requirements laid down in that Act for going through the “made affirmative” procedure.

I heard my noble friend say that this is about tidying up the statute book. Part 2 of the annex to the Explanatory Memorandum indicates that the Minister is required to make an “Appropriateness statement”, and Mr George Eustice has made a statement saying that in his view the SI,

“does no more than is appropriate”.

If we are tidying up the statute book, we do not need to think about that as part of our consideration here. This is nothing to do with tidying up the statute book.

Those are the technical issues. My real concern is the fact that we are moving from two layers of supervision to one. We are coming out of the EU; I understand all that. Up to now, each individual member state has put positions to the EU. The EU has made decisions and those have been passed back to the individual member states. That is clearly not appropriate, it does not work under the new structure, but we now have a situation where Defra is marking is own homework. Nobody is checking and saying whether it is a good decision or a bad decision; Defra is deciding it.

I know that the Government have in mind—we refer to this in our report—to introduce a stand-alone supervisory body to ensure that Defra does not mark its own homework for longer than is strictly necessary. It would be helpful as part of the consideration of this SI if the Minister could update the Committee on where we are with the creation of this new body, when it is going to arrive—I imagine as part of the Environment Bill—and how it is going to develop. Can he also generally reassure the Committee that we have in mind to ensure a proper a balance of powers, and that the Government, in the shape of Defra, will not have all the cards for longer than is necessary?

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[Lord Teverson]

I have a caveat. I fully welcome the extra resources that the MMO has and the fact that the Navy is doing that. The Navy has been largely absent from monitoring recently, because it has been dealing with other border security issues. However, the difficulty is that that budget is mainly financed from the Brexit process. Many of us do not have a lot of faith given the fact that, as the Minister will know, Defra is always on the front line regarding budget cuts, and once we get through Brexit—if indeed we do— frankly, those extra budgets will disappear and we will be back to where we are, with all the enforcement challenges that we had prior to that. I am not asking the Minister for a reply but warning him, in case he stays in office.

[Baroness Neville-Rolfe]

I am not sure that I am allowed to comment, but I was rather reassured by the list that that my noble friend read out and the fact that the Navy will now be more involved—as indeed it used to be historically, before Defra experienced cuts. It feels as though fisheries, if we get Brexit, will become a more important national asset, which will therefore justify the expenditure. I hope that that will be respected by Ministers when they come to look at these budgets.

[Lord Gardiner of Kimble]

The interventions by the noble Lord and my noble friend have inspired me to say a little more. Currently, we have two Royal Navy Batch One offshore patrol vessels assigned to fisheries protection duty. Over time these will be replaced by five, more capable, Batch Two OPVs. In addition, the MMO has appointed three commercial operators to be on standby to provide extra boats for enforcement duties, should additional support be required. The point which the noble Lord made is of course a challenge to whoever has those responsibilities, but my noble friend is absolutely right. On sustainable fisheries and ensuring that those principles are adhered to, my guess is that there will be a strong public feeling—a strong desire—given the responsibility in UK waters for that. A Government would be brave to start trimming that when there could be that potential pressure.

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[Baroness Neville-Rolfe]

My noble friend can rely on us to make it clear if we feel that not enough is being done in this important area of sustainability and its enforcement.

[Lord Gardiner of Kimble]

I have no doubt that that will be the case with all your Lordships—noble friends and noble Lords—and rightly so. Clearly, if we do not have sustainable fisheries in the end, we will have no fish, and that cannot be good for the ecosystem or for food production.

The noble Lord, Lord Teverson, again asked for reassurances on dates. If the EU introduces new fisheries measures between now and whenever, obviously we will want to make them operable so that everyone concerned in this world would have an up-to-date statute book.

My noble friend Lady Neville-Rolfe and the noble Baroness, Lady Jones of Whitchurch, mentioned errors. I am conscious of that and I take responsibility—and of course, it drives me mad. There is a normal checking process, which includes second and third-eyes checks by Defra and other government lawyers. They are also checked by policy officials and lawyers in the devolved Administrations, as well as being scrutinised by the JCSI. All government departments have rigorous checking procedures for EU exit SIs, and indeed any SI. All I can say is—I do not mean this glibly—is that I very much regret even a single one, let alone the number that I have had to explain to your Lordships. We are distinguished to have the Secondary Legislation Scrutiny Committee’s chairman, my noble friend Lord Hodgson, observing our deliberations. I know that the department replied to all the points made by the committee.

On the question of governance, the oversight function that the Commission currently holds over member states could, for example in England, definitely be taken on by the OEP, as detailed in the Environment Bill. Yes, we have had a Second Reading, but we know that this will have to come back. The OEP will be capable of holding the Government to account on their compliance with environmental laws. It will be able to take enforcement action and be required to monitor our progress on improving the natural environment. It will produce its own annual reports on its activities.

My noble friend Lord Hodgson and the noble Baroness, Lady Jones of Whitchurch, referred to oversights. The issue of the power in Article 15 also requires the Secretary of State to obtain scientific evidence to support any measures contained in regulations made under that power, as well as to consult,

“such bodies or persons as appear to the fisheries administration to be representative of the interests likely to be substantially affected by the regulations”.

In addition, I should say to my noble friend Lord Hodgson that we are working with industry and NGOs to establish a replacement fisheries advisory infrastructure for the United Kingdom that can be put in place after we leave. We have a number of established models for consultation with stakeholders, work closely with fisheries science partnerships around the country and have a multi-stakeholder expert advisory group to consider EU exit issues.

I will go through some other points. I agree with the noble Baroness, Lady Jones of Whitchurch, that it is not ideal to have a fisheries SI in which there is a section on animals, but I will seek to explain why things have happened in this way. These amendments are included in the instrument because they required an affirmative SI—since the amendments deal with transfers of powers—as well as being in an instrument that we wanted to be in force for exit day. I do not want to go into the history of this but all the work was done on the basis of a certain exit date and we, as a responsible Government, felt that we had to cover all eventualities. We have all worked together, extremely collaboratively, to ensure that no one can say we have not done our work in getting the statute book where we might have needed it to be. As I say, the instrument is to ensure the law is absolutely clear from exit day. There have been other SIs related to animal health but those had already been laid in Parliament, meaning that, at the time, this SI was the best available vehicle for these changes. I agree that us securing an SI containing this subject would have been preferable but, on this occasion, given that the amendments simply remove inadvertent duplications, I plead with your Lordships to understand that we thought that this was the most appropriate instrument available.

The noble Lord, Lord Teverson, mentioned the discard ban, which the Government obviously need to address. We recognise the importance of the effective monitoring, control and enforcement of the landing obligation. For this reason, work has been undertaken this year to enhance our control and enforcement approach. For example, to complement measures to ensure that fishers have the right resources and information to be able to comply with the landing obligation, the MMO has focused its efforts on identifying non-compliance and improving the accuracy of catch recording, particularly in high-risk fisheries. Between 2018 and 2019, the MMO more than doubled the number of inspections of landings, and also nearly doubled the number of inspections at sea. The noble Lord also asked about the regional fisheries management organisations. We have applied to join the North East Atlantic Fisheries Commission but, as I think he will know better than me, we cannot join until we have ceased to be a member state.

The noble Baroness, Lady Jones of Whitchurch, asked about fisheries administration and the MMO, and how all that comes about. The powers of the MMO are set out in the Marine and Coastal Access Act 2009. It has a number of its own fisheries management functions, such as the licensing of fishing vessels. The MMO is also responsible for fisheries enforcement and has functions relating to protecting the marine environment. The MMO is included in the definition of “fisheries administration” in the statutory instruments made under the EU withdrawal Act 2018 because it carries out these key fisheries functions. She also asked about the definition of “other sensitive areas”. Article 12 is intended to protect sensitive habitats, which are defined in Regulation (EU) 2019/1241 as,

“a habitat whose conservation status, including its extent and the condition (structure and function) of its biotic and abiotic components, is adversely affected by pressures arising from human activities, including fishing activities”.

I think that answers that point.

The intriguing term “innovative fishing gear” is used in the EU measure being amended. It is generally understood as fishing gear that: improves fishing selectivity for an intended target species, or reduces or eliminates by-catch or incidental catches of sensitive species, for example marine mammals, seabirds, and marine reptiles; and reduces the impact of fishing activity on the habitat, protecting vulnerable marine ecosystems and generally reducing the impact of bottom fishing methods on the seabed. The arrangements for introducing innovative gear require scientific assessment to ensure that the standards achieved are at least equivalent to existing methods, and certainly do not have a negative impact on sensitive habitats or non-target species.

The noble Baroness, Lady Jones of Whitchurch, asked about regional co-operation. We fully intend, of course, to continue to work with other countries that share our waters. Indeed, under the United Nations Convention on the Law of the Sea—UNCLOS—the UK is obliged to co-operate on the management of shared stocks through appropriate regional and sub-regional organisations, such as the regional fisheries management organisations. This obligation will continue to apply to the UK when we leave. Formal co-operation will also continue through the Ospar Convention, where contracting parties agree policies and strategies on environmental management across the north-east Atlantic. She also raised the process of agreeing our participation in the multiannual plans. The EU regulations already apply to our fishers, as they do to other member states. We are simply making the minimum necessary changes to the wording to ensure that the plans operate correctly as part of the UK’s statute book when we are an independent coastal state. The terms and requirements of the plans, within our waters, have not changed.

The noble Baroness also asked about our devolution arrangements, which I have already mentioned. The Northern Ireland protocol in the withdrawal agreement applies EU customs legislation in Northern Ireland but excludes territorial waters extending between zero and 12 nautical miles. The protocol sets out that the Joint Committee will consider means to ensure that tariffs are not applied to direct landings of fish and aquaculture products by Northern Ireland-registered fishing vessels. This will bring these products in line with others that are of Northern Irish origin.

There was also a query about Northern Ireland fisheries fishing in UK waters rather than in Northern Ireland waters. The designation of their catches will depend on where they are landed. The implications from the tariff perspective will be determined by the destination of those landings and exports. These important matters of detail will be considered by the Joint Committee, which is chaired by both the UK and the EU.

I will look at Hansard, because I think there may have been some other technical points, but I hope that I have covered most of them. On that basis, I recommend these regulations to your Lordships.