Fishing Boats (Electronic Transmission of Fishing Activities Data) (England) Scheme 2010

Debate between Lord Lee of Trafford and Lord Scott of Foscote

Monday 19th July 2010 Lords Chamber

[Lord Scott of Foscote]

My Lords, this statutory instrument was considered by the Merits of Statutory Instruments Committee, of which I am a member, on Tuesday 6 July. There are two respects in which the committee reached the opinion, which I share, that the statutory instrument’s drafting is profoundly unsatisfactory. Both those respects were drawn to the attention of Defra, whose written response was considered by the Select Committee the following week. The response in no way relieved the unsatisfactory respects of the original statutory instrument, so the committee decided that the chairman should write to the Minister, drawing his attention to them in the hope that he would withdraw the statutory instrument, make appropriate amendments, or cause appropriate amendments to be made, and then resubmit it. Unfortunately, the Select Committee meeting at which that was decided was on the Tuesday, and on the Wednesday or the Thursday—it does not matter which—the statutory instrument was put on the agenda for the business of the House today. Therefore I do not know what the Minister’s reaction is to the letter, or whether he has seen it. Perhaps he can clarify that.

Perhaps I may draw attention to the two respects in which the committee thought that the statutory instrument was not satisfactory. The first arises out of paragraph 6. The instrument provides for applications for grants to be made by the owners of qualifying fishing vessels to help them in meeting the costs of the software that has to be installed in order to comply with the three or four regulations that have emanated from the EU. However, paragraph 6 provides:

“The amount of the grant—

(a) must not exceed the cost of the purchase or supply of the approved software”—

that is fine, and—

“(b) may be such lesser amount as is determined by the Secretary of State”.

Read as it stands, that would give the Secretary of State the arbitrary right to reduce to a negligible amount the grant which was to be paid.

The Minister, in introducing the instrument, said that £2,000 per vessel would be the limit of the grant that would be approved. Somewhere else I saw a suggestion that £1,500 to £2,000 would be a reasonable amount. This point was drawn to the attention of Defra, which responded by stating that Defra Ministers had made a commitment to fund the reasonable costs of software. That is fine and is entirely consistent with what the noble Lord said. However, there is no word of that in the statutory instrument. The figure of £2,000, £1,500 or any other figure does not appear there. All that the statutory instrument states is that:

“The amount of the grant … may be such lesser amount as is determined by the Secretary of State”.

It is profoundly unsatisfactory to have a statutory instrument that does not spell out what are the conditions on which the grant is to be allowed. This statutory instrument does not. How easy it would have been for it to be amended so as to specify the figure of £2,000 to which the Minister referred and include it in the criteria governing the payment to be made by the Government.

One of the essential characteristics put forward about this House is that of revising legislation. Revision of legislation is generally understood as referring to primary legislation, but it is surely just as important in relation to secondary legislation such as this. The ability of the House to exercise a revising role in relation to secondary legislation depends on the points made by such committees as the Merits of Statutory Instruments Committee being taken into account, the Minister having an opportunity to make such amendments as are thought appropriate, having regard to the comments from the Merits Committee. That has not been done in the present case. That is a pity. If this House is to be held up as providing the valuable role of revision of legislation, that must surely apply to secondary as well as to primary legislation. Here, it seems not to have done so.

The second point arises from paragraph (10) of the statutory instrument. It states:

“The Secretary of State may revoke the approval of an application, or withhold payment of a grant, or of any part of the grant, if it appears that”—

note, “if it appears that”—

“(a) any condition of payment of the grant, or of any part of it, has been breached or has not been complied with; or

(b) the applicant has committed or may have committed an offence under section 17 of the Fisheries Act 1981”.

The concept of it appearing that the applicant may have committed an offence is such an unusual one as to make one wonder what provision there is for an appeal. The problems about that were drawn to the attention of Defra by the Merits Committee. The department's response was that,

“the power to revoke or to require repayment of anything already paid would be exercisable if there were sufficient evidence of a breach of a condition or of an offence”.

The reply refers to “sufficient evidence”. Where does one see the reference to sufficient evidence in the statutory instrument? Nowhere. The power to revoke and the power to demand repayment is simply left, apparently, at the discretion of the Secretary of State. That is profoundly unsatisfactory. That, too, would be capable of easy amendment. It is not the Minister's opinion that will be important; it is the objective facts. To hinge the revocation of a right to receive a particular payment on the proposition that it appears to the Minister, to the Secretary of State, that an offence may have been committed cannot be right. That is quite contrary to the basis on which judicial review, for example, proceeds.

Some of your Lordships may—certainly the lawyers present in this Chamber will—remember the great case of Liversidge and Anderson, where Lord Atkin gave a dissenting judgement which has formed the cornerstone of judicial review in modern times. Lord Atkin's point concerned a piece of legislation which allowed internment of individuals within the jurisdiction of this country if there was reasonable ground for suspicion that they were foreigners who might become engaged in nefarious activities. The question was whether the expression “there was reasonable ground” could be interpreted to mean “if the Secretary of State thinks that there was reasonable ground”. Lord Atkin said that that could not be equated with “there was reasonable ground”. Either there was or there was not, which was a matter which could be tested in the courts. There is no provision for appeal against the arbitrary exercise of power by the Minister under paragraph (10). That, too, is a profoundly unsatisfactory element in this statutory instrument.

The purpose of the statutory instrument is entirely unexceptionable. The explanations given by the noble Lord are unexceptionable, but they are not to be found in the statutory instrument. I would not wish to divide the House on the question of whether the statutory instrument should be approved, but I would wish to have an assurance from the noble Lord as regards his explanation in relation to paragraph (6)—the power to reduce the amount that can be claimed and should be paid—and paragraph (10)—the power to revoke a previous decision and, in the extreme case, call for repayment of money already paid—that those powers will not be exercised unless in the first case the amount falls above the minimum amount which the noble Lord mentioned and in the second case unless there is sufficient evidence. Both features are essential if these statutory instruments are not to go through the hoops of litigation, which is highly expensive to the country and thoroughly undesirable as a matter of principle.

[Lord Lee of Trafford]

My Lords, the Liberal Democrat Benches support the requirement in the scheme as a means of ensuring a more efficient and accurate form of recording fishing vessel activity than the previous practice of using paper logbooks and landing declarations, thus benefiting conservation. I have a particular question for my noble friend about training. In the validation and accreditation of the software systems that meet the agreed UK specification, how much regard do the contractors have for the need of training for fishermen and other operators when using the new electronic system? Many workers will have worked within the industry for a number of years and will not be used to operating such systems, so I hope that the contractors will have in mind systems that are user-friendly and simple to understand. Will the systems that meet the UK specification be similar to those used by other member states? Given the international nature of fishing operations, it would be pleasing to know that the UK Government have thought about electronic systems that will be used by neighbouring countries. Do Her Majesty’s Government have an estimate of how long the scheme will run for? What is the appropriate appeals system should an applicant be turned down for a grant? Are new entrants into the fishing industry eligible for the scheme once this legislation has come into force? Overall, we wish the scheme well and hope to see its speedy passage into law.