Fisheries Bill (Eighth sitting)

Alan Brown Excerpts

Thursday 13th December 2018 Public Bill Committees

Amendments 26 and 27 are offered essentially as probing amendments, but amendment 25 deals with a more substantial concern. I will not rehearse all the arguments about maximum sustainable yield, as I rather thought that we had finished that debate some years ago.

[Alan Brown (Kilmarnock and Loudoun) (SNP)]

Will the right hon. Gentleman advise us how amendment 25 would work in relation to the devolved Administrations managing stock and quotas?

[Mr Carmichael]

I would very much hope that they, too, would be working with a maximum sustainable yield principle. I am not aware of any suggestion that they would not.

--- Later in debate ---

[Mr Paul Sweeney (Glasgow North East) (Lab/Co-op)]

It is a pleasure, as ever, to serve under your chairmanship, Mr Hanson.

Our view in the Labour party is that the Scottish Government, and therefore Scottish Ministers, do not currently have the competence to exercise powers to determine fisheries opportunities and, as such, the consent of Scottish Ministers is not a requirement. As per the devolution settlement, the opportunity to determine fisheries opportunities currently rests with the European Council. That will be transposed to UK Ministers when we leave the European Union. It is therefore the case that any provision requiring the UK Minister to seek the consent of Scottish Ministers in advance of the determination would in essence act as a potential veto on the Secretary of State and the United Kingdom�s ability to determine fisheries opportunities across the United Kingdom common fisheries area.

We have seen throughout the process of Brexit and the subsequent required legislation, such as the Trade Bill, the Agriculture Bill and now the Fisheries Bill, that the Scottish National party wish to extend the powers afforded to Scottish Ministers and what decisions require their consent. I disagree wholeheartedly with that approach, as it is not in line with the devolution settlements, including the 1998 Act, which would have been voted on previously. If SNP Members were to address this issue through the proper channels by trying to amend the devolution settlements prima facie, rather than by trying to do it by the back door, that would be a more acceptable approach.

[Alan Brown]

As my hon. Friend the Member for Argyll and Bute pointed out, the way the Scotland Act was originally set up, if matters are not listed as reserved, they are devolved. Surely it follows that the repatriation of powers from Europe to the UK should follow that devolution settlement and go to the rightful Parliament.

[Mr Sweeney]

Of course, the complexity lies in the interface with international obligations. The Scotland Act 1998 makes it clear that,

�If the Secretary of State has reasonable grounds to believe that any action proposed to be taken by a member of the Scottish Government would be incompatible with any international obligations, he may by order direct that the proposed action shall not be taken.�

That shows a clear inconsistency with the Scotland Act.

That is corroborated by the Law Society of Scotland, which states:

�We welcome the duties of the Secretary of State set out under Clause 19 when making a determination under clause 18. The provisions require the Secretary of State to consult with devolved administrations and the Marine Management Organisation before making or withdrawing a determination. The clause also requires the Secretary of State to publish a notice of a determination after it being made or withdrawn, lay a copy of the notice in Parliament, and send a copy to the devolved administrations. This will assist in terms of ensuring clarity and accountability.�

Of course, if our amendment had been upheld with regard to the dispute resolution mechanism, that would have been a far more sustainable way to have resolved any disputes, rather than leading to an inevitable impasse and total logjam in the processing of a common fisheries area in the UK.

[Alan Brown]

The hon. Gentleman talks about logjams and he mentioned the other Bills on which the Scottish Government are withholding a legislative consent motion. Is he saying that the Scottish Government should just acquiesce to Westminster and not defend the rights of the Scottish Government?

[Mr Sweeney]

That is a rather unfortunate characterisation of the situation. We want to have a consensual approach where arbitration is done in a sustainable way, not political opportunism leading to an impasse in the economic progress of this country.

[Alan Brown]

The hon. Gentleman�s own party voted with the SNP and other parties against the European Union (Withdrawal) Bill. The Scottish Government withholding legislative consent in some of these cases is actually in line with cross-party support in Parliament.

--- Later in debate ---

[Luke Pollard]

I beg to move amendment 106, in clause�20,�page�11,�line�28,�at end insert�

�(5A) After that paragraph insert�

�1A The relevant national authorities shall distribute fishing opportunities made available to them, and may redistribute any fishing opportunities that were made available to them prior to the United Kingdom exiting the European Union. Any such distribution and redistribution must be carried out according to social, environmental and local economic criteria following national and regional consultation from relevant stakeholder advisory groups, including representative groups from across the fishing fleet, scientists, and environmental groups.��

This amendment would allow the redistribution of existing fishing opportunities, would also set criteria for the distribution of future and redistribution of existing fishing opportunities and require consultation.

Amendment 106 relates to the redistribution of fishing opportunities. A key aim of the Bill is ultimately to create a fairer system, and Members will forgive me if I take a moment to read out why it is so important. This is a key amendment for Opposition Members, and one that we believe would, if taken up, have a transformational impact on the health of our oceans and on the local economies of coastal communities right across the UK.

The logic of the amendment follows from the principle of fish being a public good, which, as we have just discussed, is not yet on the face of the Bill, but is something we all agree on. To acquire the right to fish, and use that for the public good, there should be a set of criteria that need to be followed to ensure that what we are taking balances out. The current FQA system is broken: half of English quota is held by companies based overseas, the small-scale fleet only holds 6% of quota, and the five largest quota holders�four of which belong to families on The Sunday Times rich list�control more than a third of UK fishing quota. Small boats provide the backbone of our fishing fleet, making up the majority of that fleet. They generally use low-impact gear and provide more jobs per tonne, but their share of quota is limited to around 4% to 6% of the total.

While there may be more fish for the UK after we leave the common fisheries policy, not amending the distribution of quota will exacerbate existing levels of inequality between parts of the sector, and will fail to incentivise best practice. The fixed quota allocation system, which has been heavily criticised for being unfair from the outset, has not been updated since the 1990s. Again, in the words of the hon. Member for Waveney:

�It is commonly recognised that the inshore fleet�the under-10s�has had a raw deal as far as access to quota and fishing opportunities is concerned.���[Official Report, Fisheries Public Bill Committee, 4 December 2018; c. 39, Q69.]

As a result of the existing system, ownership of fishing quota has become increasingly consolidated among larger-scale interests.

I will make the same remarks as I made in yesterday�s debate on the UK fishing industry: in the fisheries sector, we do not talk about small and medium-sized enterprises in the same way as we would in manufacturing, but if fishing were like manufacturing, the small boats would be the SMEs of our economy. There would be a much greater focus on the support system given to them, the investment into them and the jobs they create, and on making sure that they have the right and fair allocation of quota.

In our evidence session, Griffin Carpenter from the New Economics Foundation said:

�In essence, fisheries have been accidentally privatised. Every year, quota is allocated to the same holders, and there is a legitimate expectation that that continues in future. The Department for Environment, Food and Rural Affairs and other organisations are too scared to break that hold on the quota and say, �This year we will allocate quota differently.� It has not been done; it is basically privatised now the claim is so strong. If there is ever a point to break that link, it is now.���[Official Report, Fisheries Public Bill Committee, 6 December 2018; c. 102, Q196.]

I agree with him.

The small-scale fleet has generally been excluded from the FQA system and producer organisations, which has led to the decline of coastal communities and ports. Since 1938�a year I am sure we all remember well�the number of fishermen on UK-registered vessels has decreased by 76%. Fifty years ago, the UK had 50,000 fishers; now we have almost 12,000�a huge decline.

The small boat sector is shrinking every year. Between 2007 and last year, the number of fishermen on UK-registered vessels decreased by 9% from 12,871 to only 11,692. Since 2007, the number of fishermen on English and Scottish-administered vessels decreased by 10%. It has fallen by 22% in Wales, and in 2017, 42% of fishermen on vessels administered in Wales were listed as part time. Under the combination of an unfair system and Tory austerity, which mainly hits coastal communities, or has had a disproportionate effect on them, small-scale fishing activity in coastal communities the length and breadth of the UK is a shadow of its former self.

There is now an opportunity to reinvigorate our fishing industry through better and fairer distribution of quota. Fishing quota provides an opportunity to commercially fish a resource that belongs to everyone. Fishing should be seen as a privilege, not a right, but it has effectively been privatised, as I mentioned earlier. The Bill is our opportunity to change that. We do not want to rob big boats of quota and give it to small boats; we want to use the Bill to create a new criterion for allocating quota based on social, environmental and economic factors.

[Alan Brown]

I acknowledge the opportunity that the hon. Gentleman is talking about. We heard evidence about possible opportunities for some future reallocation. How would his amendment work in principle in terms of the devolution settlement? Would it allow UK Ministers to redistribute Scottish quotas, or would it be an England-only matter?

[Luke Pollard]

I am grateful for that intervention, because it goes to the core of the amendment, which basically sets a different criterion for allocation. At the moment, quota is predominantly allocated on the FQA system. We are suggesting that there should be redistribution based on social, economic and environmental criteria, done on a species-by-species, zone-by-zone basis to take into account the varieties in our different fishing industries around the United Kingdom.

It is important that, when we set the tone for how fishing quotas should be allocated in future, the economic link that I spoke about earlier and the environmental consequences that the hon. Gentleman spoke about earlier are taken into account. That should be done by all fisheries Administrations, not just England or Scotland. It should be done by the entirety of the United Kingdom.

Quotas should be allocated on transparent social and ecological criteria to benefit fishing communities�for example, by offering a greater share for complying with relevant regulations, taking part in data gathering, fully monitoring and recording catches, and complying with discard rules. The UK has always had the ability to reallocate quota to reward particular types of fishing practice or to support broader social or economic goals, but has chosen not to seize the full opportunities that come from that.

Article 17 of the reformed common fisheries policy urged European member states to consider environmental, economic and social criteria when allocating opportunities. It was heralded as potentially revolutionary by senior EU officials when it was launched as part of the overall reformed CFP, but its lack of mandate meant that it failed to be implemented effectively in any EU member state. Greenpeace recently lost a case in which it made that argument in the High Court, but the Bill is a chance to fix that, using fairer criteria for the benefit of the small fleet in particular.

--- Later in debate ---

[Mr Sweeney]

I am happy to support this excellent amendment, because it seeks to ensure that in the distribution of fishing opportunities, Scottish Ministers, along with Welsh Ministers and the Northern Ireland Department�we hope, soon, a Northern Ireland Executive will be restored�would be recognised as �relevant national authorities�, alongside the Secretary of State and the Marine Management Organisation. The Labour party believes such an approach to be fair. It would ensure parity between Scottish Ministers and the Secretary of State.

In good faith, I urge the Minister to accept the amendment. A failure to do so would show that the UK Government are not at all committed to ensuring that Scotland, Wales and Northern Ireland are equal partners in our Union of nations. The amendment is therefore critical.

[Alan Brown]

Is the hon. Gentleman aware that the Scottish Parliament initially was happy not to be included in the clause, because the Scottish Government have worked with the UK Government on that basis?

[Mr Sweeney]

It seems that we are in violent agreement on some things�we cannot do wrong for doing right, can we? Interestingly, I think that adding the amendment to the Bill would define the process and make it clear. That is why we also supported a clear dispute resolution mechanism being in the Bill. That, too, would have provided a clear, unequivocal process that would have allowed us to resolve these problems with the different partners in the UK. I have to say that I was rather disappointed that the SNP abstained on that amendment, but we are where we are. I think this is a worthwhile measure and it will be helpful for us to proceed on this basis. I urge the Minister, in good faith, to support it to bind our Union together even more.

--- Later in debate ---

[Peter Aldous]

The new clause sets out criteria for the allocation of fishing opportunities. I would like to place on the record my thanks to Dr Tom Appleby, who appeared before us in last week�s evidence session, for his work on drafting these proposed provisions.

As I have mentioned, clause 20 is a reworking of article 17 of the common fisheries policy, which seeks to incentivise better environmental practice. As currently drafted, the clause permits the Secretary of State to distribute fishing opportunities to the devolved Assemblies and English fishermen. There is a concern that it is too complex. The new clause splits those obligations into two parts, as the roles are subtly different�one is a UK determination and the other is a determination with respect to England only. There is also a concern that the way the clause was incorporated by references makes it difficult to read. The new clause seeks to improve on that.

The new clause provides the following. First, it provides a UK function in subsection (1) and an English function in subsections (2) and (3). Secondly, unlike other public assets, the nature of the public ownership of UK fisheries is not settled in legislation�we heard the reasons for that on Tuesday�although the courts confirmed in the 2013 case that has been mentioned at length that fish are a public asset. It is important that the nature of that public ownership is settled, as that would enable UK administrators to manage and dispose of the asset properly, with appropriate powers and duties being granted. It is proposed that ownership should take the form of a public trust vested in the Secretary of State in a similar way to other Crown assets managed by such organisations as the Crown Estate Commissioners.

Thirdly, the distribution of fishing opportunities would include social criteria as a means of tying in the joint fisheries statements and the Secretary of State�s fisheries statement. It would also include a means of rewarding better fishing practices. Finally, since the documentation recording the reasons for disposing of fishing opportunities to the commercial sector would involve the distribution of a public asset, there would need to be unequivocal transparency.

We examined in last week�s evidence sessions whether quota reallocation would leave the Government and the fisheries administrations exposed to legal threats. It is important to consider that question with regard to the new clause. In so doing, I highlight two issues. First, Greenpeace sought independent legal advice, which concluded that these changes would be compatible with domestic and international law and that

�a challenge to a new system of quota allocation enshrined in an Act of Parliament would be unlikely to succeed.�

That conclusion is based on two key points. First, the mandate for reallocation would be placed in a new Act of Parliament that overrides any common law and, after Brexit, will be supreme. Secondly, in the 2013 case, Mr Justice Cranston stated that in his view FQA units could be deemed as possessions falling within article 1 of the first protocol of the European convention on human rights�the right to property. He also said that FQA units had no value if no quota had been allocated or they were unused, and in any case the interference with the possession of FQA units was in accordance with law and was justified.

Taken together, these two points mean that in the scenario of mandating quota reallocation in UK law, as we are now considering in our discussion of this Bill, this is compatible�

[Alan Brown]

Will the hon. Gentleman explain how his new clause would work in terms of the devolved Administrations and how they manage their quotas?

[Peter Aldous]

I thank the hon. Gentleman for that point. The intention is not to interfere with that management through the current devolution settlement, so I do not think that he has a particular worry on this issue.

[Alan Brown]

I accept that the hon. Gentleman says that he is not seeking to change the devolved settlement; it is just that the new clause lists the Scottish Ministers. That is why I am trying to understand how it would work practically in the future.