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

Debate between Lord Scott of Foscote and Baroness Quin

Monday 19th July 2010 Lords Chamber

[Baroness Quin]

My Lords, the Opposition welcome the opportunity to debate this statutory instrument and, indeed, welcome the measure itself, not least because the work on its principles was undertaken by the previous Government after meetings and consultations with the fishing industry. We feel that the benefits of this legislation outweigh any disadvantages.

Paragraph 7.2 of the Explanatory Memorandum attached to the instrument sums up the benefits when it describes the purpose of the scheme, using words similar to those used by the Minister, which is to ensure,

“more timely and accurate information on fishing vessel activity and enable Fishing Administrations to better manage the uptake of quotas and restrictions on fishing activities”.

That,

“in turn will contribute positively to the conservation and sustainable exploitation of fish stocks”.

There are other positive aspects to the measure, such as the reduction of the administrative burden and consequent considerable time savings, which again are detailed in the Explanatory Memorandum and the useful impact assessment.

However, while generally supporting the measure, I none the less want to put some questions to the Minister, particularly in the light of what he described, rightly, as the time pressures on us and other European states in complying with these regulations, as well as some of the difficulties connected with IT development with which we are familiar. The Minister said that two suppliers have now been identified, which means that there are two suppliers on the list that the Government have to draw up. How happy is he about the situation, given that obviously the greater the choice, the more likely it is that costs will be more competitive, particularly for the fishing industry? Can he assure us that all possible methods have been used to try to communicate with the industry and those affected by the scheme as much information as they need, so that, even with a limited choice, they will be able to make informed decisions?

In this age of devolution, the people affected will want to be assured that there is no discriminatory treatment for fishing vessels in the different UK administrations. I wonder whether the Minister can assure us of that in his reply. Certainly, the Explanatory Memorandum says that the aim is to ensure that,

“small English businesses are not placed at a competitive disadvantage compared with their UK and EU counterparts”.

Any detail on that would be welcome. Furthermore, paragraph 9(2) of the scheme stipulates that the Secretary of State must,

“reject an application if of the opinion that the port of administration of the fishing boat has been changed to England for the primary purpose of ensuring that the fishing boat is an eligible English fishing boat for the purposes of the Scheme”.

Does the Minister think that there is a risk of shopping around in that way, or is that simply an additional safeguard in the legislation?

Obviously, we are all committed to the sustainable exploitation of fish stocks. I wonder therefore whether in response the Minister could say a few words about how the scheme fits in with, and perhaps complements, other initiatives on which it would be good to be updated, such as the use of onboard catch monitoring.

We know that the Marine Management Organisation will be administering the scheme and that it is expected that that can be done within existing resources. The Opposition are committed to the work of the MMO and we would be grateful for any information that the Minister can give today about the future budget of that organisation. We would like to feel assured that it will be able to continue its valuable work, which affects all those involved in the fishing industry and the overall health of our marine environment. My right honourable and honourable friends in another place, Hilary Benn and Huw Irranca-Davies, are concerned about this.

A number of other points could be raised, but, given that the scheme will be reviewed and its effect considered over the next three years, perhaps I may write to the Minister about them as part of the ongoing review process. That would be helpful. In conclusion, I reiterate our general support for the scheme and its provisions.

[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.