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

Baroness Vere of Norbiton Excerpts

Tuesday 26th March 2019 Lords Chamber

Moved by

[Baroness Vere of Norbiton]

That the draft Regulations laid before the House on 17 January be approved.

Relevant documents: 15th and 19th Reports from the Secondary Legislation Scrutiny Committee (Sub-Committee A)

[Baroness Vere of Norbiton (Con)]

My Lords, these grouped instruments will ensure that all the applicable parts of the common fisheries policy have effect in UK law, should the UK leave the EU without a deal. The technical amendments that they make will ensure that retained EU law provides effective and enforceable UK law, as well as continuity to businesses, while protecting the environment. No policy changes are made to the effect of the retained EU law and no change is expected in the way that the fishing industry conducts its activities as a result of the instruments.

These three instruments are closely related. Two of them amend some of the same regulations—one making simple fixes and the other transferring powers to exercise functions contained in those regulations. The third instrument amends late-emerging regulations that came into force in late December 2018 and January 2019. Together, they amend retained EU law in order to provide legal continuity for UK fisheries management post EU exit.

The amendments extend and apply to the United Kingdom. Fisheries management in the UK is largely devolved to Scotland, Wales and Northern Ireland. These instruments have been developed and drafted in close co-operation with the devolved Administrations, who have given their consent, ensuring a common approach which respects the existing devolution settlements and maintains the existing system of fisheries management. For the future, the UK Government and the devolved Administrations are working together to develop a new UK framework made up of both legislative and non-legislative elements in order to maintain a common approach in a number of areas.

Where provisions place obligations or confer functions or powers on member states, the references to member states are, generally speaking, changed to “a fisheries administration” to maintain the existing system of fisheries management. In addition, EU-specific terms, such as “Union vessels” or “Union waters”, have been replaced with an equivalent term—for example, “United Kingdom vessels” and “United Kingdom waters”—to apply them to the UK only.

I shall deal briefly with each SI in turn. The first one, the Common Fisheries Policy (Amendment etc.) (EU Exit) Regulations 2019, amends the majority of retained EU legislation. I refer noble Lords to paragraph 2.2 of the Explanatory Memorandum, which sets out the regulations that are amended by this instrument. These regulations include the following: the basic regulation; the control regulations; regulations on illegal, unregulated and unreported fishing; multiannual plans and effort regimes; the data collection frameworks, and many more. Other provisions—for example, those defining characteristics for vessels, the fishing fleet register and measures for the conservation of resources and ecosystems—will also be amended.

The instrument was presented to the sifting committee on 27 November 2018 and it recommended that it be subject to the affirmative procedure. Since then, additional detail has been added to the Explanatory Memorandum, including an annexe that more fully describes the nature of the amendments made by the instrument. It has been considered by the Secondary Legislation Scrutiny Committee, which reported the instrument due to the public and political importance of fisheries. The Joint Committee on Statutory Instruments did not report it.

The second SI, the Common Fisheries Policy and Aquaculture (Amendment etc.) (EU Exit) Regulations 2019, amends regulations concerned with regional fisheries management organisations—RFMOs. Having these in place when we leave the EU will mean that we are fully compliant with international agreements, allowing us to join key conventions in our own right. The SI also amends the technical conservation measures that fishing vessels must adhere to. These regulations are essential for the management of the fisheries activities of UK vessels, wherever they are, and non-UK vessels in UK waters.

Furthermore, amendments are made to the North Sea multiannual plan, which establishes long-term plans for the recovery, preservation and sustainable management of mixed fisheries in the North Sea. The instrument also transfers powers previously conferred upon EU entities to make legislation or exercise legislative decisions. These will now be enacted by UK Administrations, and parliamentarians will be able to scrutinise them in a way not possible when the powers were exercised by the EU. There are also minor consequential changes to domestic legislation. The instrument has been considered by the SLSC and the JCSI, neither of which reported it.

Thirdly and finally, the Common Fisheries Policy (Amendment etc.) (EU Exit) (No. 2) Regulations 2019 amend three regulations that set out exemptions from the landing obligation for certain fisheries in north-western waters and the North Sea. The minor, technical amendments to these provisions enable the UK to facilitate the full implementation of the scheme from January 2019. This will ensure that the UK continues to abide by the same conservation measures.

The SI also amends two regulations that set fishing opportunities. One sets total allowable catch—TAC—and quota for fish stocks for 2019, and the second sets total allowable catch and quota for certain deep-sea stocks for 2019 and 2020. In these two regulations, the prohibitions on the fishing of certain species in certain areas will be amended so that they continue to apply. However, provisions that put into law the TAC and quota set by the EU will be revoked because it will not be appropriate for these to apply to the UK when we become an independent coastal state. Again, the instrument has been considered by the SLSC and the JCSI, neither of which reported it.

Because these instruments make only necessary technical amendments to retained EU law that, prior to exit day, already applies in the form of directly applicable EU law, the impact is expected to be minimal and therefore a full impact assessment was not carried out. While there was no formal duty to consult, a 10-week consultation was conducted through the fisheries White Paper, which described future fisheries policy as well as the general legislative approach taken by these SIs.

Alongside that, meetings have taken place with key stakeholders from the fisheries sector, including the National Federation of Fishermen’s Organisations and the Scottish Fishermen’s Federation; the wider industry, including producer organisations; and environmental non-government bodies such as the World Wildlife Fund. Stakeholders, including the Association of Inshore Fisheries and Conservation Authorities, were supportive of the approach. We have also been happy to receive questions and comments from environmental non-governmental organisations, including ClientEarth and the Green Alliance, which we have addressed in the Explanatory Memorandum and made publicly available.

These instruments make retained EU law effective in UK law. The legislation is essential to ensure that we retain an effective system of fisheries management from day one of EU exit, so that our fishing continues to be well regulated and sustainable. This legislation is complemented by the Fisheries Bill, which creates the powers to allow us, over time, to build UK policy for a sustainable and profitable fishing industry. A previous instrument, the Fisheries (Amendment) (EU Exit) Regulations 2019, amended domestic fisheries legislation to make it effective in UK law after EU exit; some of those amendments arose as a consequence of changes made by these instruments. That instrument was taken through this House by my noble friend Lord Gardiner on 6 February 2019. I beg to move.

[Baroness McIntosh of Pickering (Con)]

My Lords, I thank my noble friend the Minister for moving these rather meaty statutory instruments. I would like to place on record my admiration for the then fisheries Minister in the other place, my honourable friend Richard Benyon, for the fisheries policy that he negotiated. It has been revolutionary and has changed the way that fisheries policy is decided and conservation measures are taken. It set the scene by allowing coastal states to agree what the conservation measures would be.

Under the new provisions that we are adopting this evening, with retained EU law and making sure, as she said, that there is a smooth transition to our becoming a third country, if one cares about conservation of fisheries going forward, how will we agree conservation measures with the nearest coastal state? The way that the map is drawn means that we virtually share waters with our nearest neighbour, France. The Scottish fisheries situation is slightly different in that Scotland does not have a near neighbour in the sense of backing up to a coastal state.

Having said that, I think that Scottish fishermen will be deeply interested in one of the few—three, in fact—rollover agreements that has been agreed: that with the Faroe Islands, where we take £200 million mostly in fish products each year. Obviously, that will compete directly with the Scottish fisheries. I understand that the agreements with Norway and Iceland are not yet available to view, but I would imagine that most of the imported products from Norway and Iceland will also be in fisheries. I have two questions on that. First, what discussions have there been in the Joint Ministerial Council on the rollover agreements to date, the future rollover agreements and the implications, particularly for Scottish fishermen? Secondly, how will we agree going forward to conserve those fish? I have always maintained that fish do not wear a union jack; they swim between the various waters and it is very difficult to control them. We need a conservation policy that will be shared on an ongoing basis with our near neighbours, the French and others, with whom we currently share a common fisheries policy. Going forward, I am sure that it will be the Government’s intention to do this.

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I hope that the Minister has made a note of our concerns and that she is able to provide reassurance that the Government intend to make good the omissions that we have identified, and ensure that the fishing sector and environmentalists can have more confidence in the Government’s intentions. I look forward to her response.

[Baroness Vere of Norbiton]

I thank all noble Lords who have taken part in this evening’s debate. It has certainly been a debate of great passion. I encourage all noble Lords to bring that passion to the discussions on the Fisheries Bill, during which I hope many of these issues will once again be aired in greater detail and by which we can put them in a legislative framework.

I am confident that these SIs mirror the existing EU rules, with the caveat that the rules must of course be operable. It would be pointless if we brought over rules which simply could not be operated once they reached our rulebook, so it is necessary for these SIs to look as they do. I accept that they are part of a suite of legislation. However, I would caveat that by saying that we are already fairly well down the road in the debate and discussions on the sort of national fisheries policy that we want to see in the future. As noble Lords will know, we have already had the fisheries White Paper. It went into quite some detail on what the Government feel is an appropriate national fishing policy. There was a 10-week consultation and we had a lot of feedback from various stakeholders.

What is also true is that we are leaving the European Union and, as such, we become an independent coastal state. Again, that comes with various obligations, many of which are about engaging with neighbouring coastal states and encouraging co-operation and the sharing of data. It includes encouraging the sustainability of the seas in which the fish live; when they travel across those borders, they definitely do not have a union Jack on them. I am not as pessimistic as my noble friend Lord Deben about it all being terrible and dreadful, with us being stuck out on our own. There are countries far smaller than us which have very successful negotiating strategies, are able to deal internationally and able to operate their own independent fishing policy.

I accept that we are on a journey and I hope that we get to the next stop on that journey very soon. I think all noble Lords would welcome the opportunity to have a go at the Fisheries Bill—I certainly would—but it is important that the SIs we have tabled for debate today are a temporary measure. They will put a line in the sand and say: “This is where we were at this point”. These measures will all make sense and enable us to operate the fishing policy that we currently have.

[Lord Deben]

All that my noble friend said in that last paragraph is true, except that there is a series of things which operate now and will be put into the Fisheries Bill. There are two problems with this. First, we do not know what or how those provisions will be, so we have to take it on her word—I am perfectly prepared to do so—that it will all be at least as good as the present arrangements. Has it occurred to Defra that it is a peculiar constitutional concept if the Minister asks the House to accept these laws on the basis that there will be laws, rather than having within these provisions an interim arrangement?

Secondly, the noble Baroness, Lady Jones of Whitchurch, made a point about something which I do not understand: that all these things could have been included as an interim arrangement, and that would remain or be changed when we come to the Fisheries Bill. For me, the difficulty is that I am being asked to support something which could have been complete—under the withdrawal Act, it should have been complete—but is not. It is just a promise that it will be completed in the future. I do not understand why that is.

[Baroness Vere of Norbiton]

I think my noble friend is slightly misconstruing my words: certainly, there are elements within the legislation that could not be brought over because of the withdrawal Act, because it would have made a change in policy or would have gone beyond the powers we have within the withdrawal Act. It was simply not possible to do so, so I am asking noble Lords to consider today that we are on a journey. We have already had a huge number of comments from Ministers in both Houses about where we feel our fisheries policy is going and where we would like it to go, but we would obviously like the support and input of noble Lords as we develop that policy. Even taken by themselves, we do not feel that there are significant omissions that cannot be explained by reasons other than that we are trying to put EU legislation into UK law and it has to work. It has to stand up for itself.

[Baroness Jones of Whitchurch]

I am sorry to push the noble Baroness—she knows that I do not do this very often—but I have to concur with the comments of the noble Lord, Lord Deben. I listened very carefully to what she said, but to go back to the example of maximum sustainable yield, Defra wrote to the Secondary Legislation Scrutiny Committee saying that the commitment was omitted because it was going to be dealt with in the Fisheries Bill. Maximum sustainable yield could have been put into this SI even though it was going to be corrected, updated, or however the noble Baroness wants to reword it, in a future fisheries Bill. I give that as just one example: we could say the same thing about the advisory councils. There could have been an interim arrangement for advisory councils in this SI, understanding that in the future we might want to restructure them. Those are just a couple of examples. I am not sure that the noble Baroness is very convincing on this. We all want to have a wider discussion on the Fisheries Bill, but that is not what these pieces of secondary legislation are about.

[Baroness Vere of Norbiton]

I thank the noble Baroness for her comments and will certainly consider them in more detail. If I can get any more information on this, I will send it to her. I repeat, however, that some of the articles were not amended because they are not operable; they are conditional upon mutual access to EU waters. We will be an independent coastal state when we leave, and that will be put in sharper relief if we leave the EU without a deal in days or weeks. We are facing this from the perspective that we will be an independent coastal state and therefore, where there are issues that rely on reciprocity and on the actions of others, we cannot put those, in all good faith, into UK law and expect them to be able to stand up.

I do not want to dwell too much on this because a number of noble Lords asked questions, but I will reflect on it and try to provide the noble Baroness with a bit more clarity. I shall get the legal team on to it to make sure that we cover it. I will say, because a number of noble Lords mentioned it, that sustainable fishing is at the heart of our 25-year environment plan. It underlined the fisheries White Paper and negotiations will be essential, whether that be with our nearest neighbours or countries further away.

The noble Lord, Lord Teverson, my noble friend Lady Byford and the noble Baroness, Lady Jones, raised maximum sustainable yield. We have always been a strong advocate of maximum sustainable yield, both in international agreements and in negotiations over catch limits for shared stocks that we have an interest in, and this is not going to change. For example, Article 6 of the TAC and quota regulation is concerned with TACs to be determined by member states and has been omitted because the Secretary of State will be determining TACs under the power in the forthcoming Fisheries Bill and current common law powers, along with the criteria for setting the quota.

My noble friend Lady McIntosh mentioned quota management and how that might exist between the different countries of the United Kingdom. Of course, we will be reviewing quota management as we leave the European Union. We described in the fisheries White Paper how we will approach this, including the possibility of moving to a new basis for allocation of any additional quota we gain through negotiation. A number of noble Lords mentioned the very important issue of the landing obligation. Again, as we set out in the fisheries White Paper, the UK Government remain fully committed to ending this wasteful and atrocious discarding of fish and we continue to work with the industry. Once we have left the EU and the CFP we will have the flexibility to do this in a way that reflects the nature of UK waters and fisheries. While we can continue to use retained CFP measures, we will also have the opportunity to adopt new measures that will reduce discarding while also preventing choke. Some examples were set out in the fisheries White Paper.

There has been much discussion today about scientific evidence; I agree that it is critical. Perhaps for fisheries more than for some other sectors, a truly international perspective is hugely beneficial, and the UK has immense strength in this area. The Government are working with the devolved Administrations to develop a replacement fisheries advisory framework for the UK that is fit for purpose and can deliver world-class scientific advice to meet our commitments. We intend to continue to collect the marine and fisheries data, as is currently happening, to inform the International Council for the Exploration of the Sea of research and stock assessments. We are currently in the process of establishing an agreement with ICES for when we leave the EU. We will continue to use its research outputs and advice as well as our own, very well respected national labs—for example, Cefas.

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[Baroness McIntosh of Pickering]

My noble friend mentioned Cefas. I visited the International Council for Exploration of the Seas in Copenhagen about two years ago. It has a number of leading British scientists and other nationalities who will be concerned about their status, but it is an international organisation. Have the Government formed a view as to whether we will still be a party to ICES post Brexit?

[Baroness Vere of Norbiton]

I believe that we will be and I shall write if that is not the case—it is indeed the case.

Enforcement is an incredibly important issue. Defra is working very closely with the Marine Management Organisation, the Association of Inshore Fisheries and Conservation Authorities, the Royal Navy, Border Force and other organisations to make sure that appropriate arrangements are in place for day one. The UK will maintain its scheme of monitoring, control and surveillance through vessel monitoring systems, electronic logbooks and other reporting requirements. Over time, as we develop our fisheries regime, we will use the new powers in the Bill to create the offence of vicarious liability against, for example, owners and charterers of fishing vessels.

The noble Lord, Lord Teverson, was very clear that we should make sure that all those operating on the front line of control and enforcement are briefed on what they should do on day one: this is critical, because we have seen what has happened when things have gone wrong. People can be in the wrong place at the wrong time and doing the wrong things; tempers can get very frayed indeed and it can escalate extremely quickly. So, following approval from Her Majesty’s Treasury and Ministers, we are implementing our full control and enforcement preferred approach and putting in place a significant uplift in our control and enforcement capability for day one. In addition, the Joint Maritime Operations Coordination Centre—JMOCC—has been established to enhance joint working between law enforcement agencies and the Royal Navy to improve patrol capabilities and increase information sharing across government.

I thank the noble and right reverend Lord, Lord Eames, for drawing our attention to the issue of the Irish border. Many people think that that is a land border, but it is a sea border too, and I know of concerns about the suspension of the agreement between the UK and the Republic of Ireland due to a verdict of the Supreme Court of Ireland several years ago. This agreement allows for fishing in the inshore 0-6 nautical miles zone of Northern Ireland/Republic of Ireland waters. The Government are pleased that the Irish Government have committed to resolve the issue and to restore the agreement on the Irish side. We will certainly continue to discuss this with the Irish Government. Furthermore, we are working very closely with the Irish Government to patrol the seas in that area. It is absolutely critical that in all these circumstances, we work very closely with our neighbours to make sure that there are no misunderstandings, while recognising that, for example, control of seas around Northern Ireland is the responsibility of DAERA in Northern Ireland.

The noble Baroness, Lady Jones, mentioned the replacement of penalties. I should point out that fisheries administrations already have the power to adopt appropriate measures for ensuring control, inspection and enforcement activities under domestic legislation, so it is not necessary to bring the powers across. Where we already have the powers, obviously, we have not brought them across. The current and proposed future UK system of control and enforcement delivers effective penalties. We have no intention of weakening what we already have in place. Section 24 in Part III of the Fisheries Act 1981, for example, sets out penalties for offences, and Chapter 3 of the Marine and Coastal Access Act 2009 sets out the civil sanctions to be imposed by the appropriate licensing authority.

The noble Lord, Lord Teverson, asked about the cost of joining RFMOs. I am afraid I cannot remember what each of the initials stands for, so the noble Lord will have to forgive me, but for the IOTC—I am guessing that the T might stand for tuna; I cannot remember.

[Lord Teverson]

Yes, tuna.

[Baroness Vere of Norbiton]

Yes. The cost of joining the IOTC is £150,000 to £200,000; for ICCAT it is £100,000 to £150,000; for the NAFO it is £45,000 to £80,000; and for the NEAFC it is £400,000 to £600,000. That is the cost of our participation when we sign up as a member in our own right.

The noble Lord, Lord Teverson, also spoke about sustainable fisheries partnership agreements, which are agreements with nations that tend to be much further away. As an independent coastal state, the UK will set its own fishing opportunities in agreement with third countries, and we are considering whether and how we should replace existing agreements. The UK has not fished in Morocco since 2011 and it has not fished in Mauritania since 2012, so the only active fishing interest we currently have is an agreement with Greenland, with one vessel fishing there. That has been active in eight of the last 10 years. But certainly, we can go back and look at this in due course, once we have left the EU.

On the issue of quota and the figures, we have revoked provisions that relate to the setting of UK total allowable catch and quota for the UK. These provisions could not be made operable because it would be inappropriate for the EU to set the UK’s quota once it is no longer a member state. International quota swaps have already happened in 2019, so the fishing opportunities available to the UK as stated in the regulations are already out of date. The Secretary of State will therefore replace the current EU figures with the UK fishing opportunities, using common law or prerogative power. The 2019 figures will be published as an annexe to the UK quota management rules, which will be updated in time for exit day.

If the noble Lord will oblige me, I would like to come back to him on the legal side of the North Sea multiannual plan. I have a response here but I am not satisfied with it and I would rather write to him.

This SI brings across provisions that already exist for fees and charges. This does not in any way represent a change to the status quo, as the fisheries administrations already have this power.

Sharing of the MS data is of course a very important issue. A number of provisions in the CFP oblige member states to co-ordinate with or assist other member states, often in close co-operation. The UK absolutely intends to co-operate with the EU and our other neighbours, but of course is unable to legislate for co-operation with member states in the absence of international agreements, which I hope we will get in the future. Data for scientific purposes will continue to be collected and shared with international organisations such as ICES and the RFMOs. The data will also be published, as it currently is.

[Baroness Jones of Whitchurch]

Perhaps I might press the Minister on that a little. It sounds like that is all a project for the future. However, it would have been nice to have been reassured that, notwithstanding that we will not be part of the current arrangements, discussions are already taking place with our European counterparts to make sure that a mechanism, however informal, for that continuity of data sharing will be in place from day one, rather than starting the discussions after we have left, when there is bound to be a gap in data sharing. Perhaps she could reassure us that this is already being actively discussed with the European Union.

[Baroness Vere of Norbiton]

I am not able to comment on the meetings that have happened to date on this issue, but I am very happy to find out for the noble Baroness and to write to her with that information.

Finally, I want to address the issue of amending the powers from “requires” to “allows”. I completely understand why this may have looked a little odd. However, powers of the European Commission are often drafted into EU law as obligations for the Commission to legislate. This is essentially an instruction—from the European Parliament, for example—for the Commission to legislate to fill in the technical gaps, which, obviously, the Commission goes off and does itself. But in the majority of cases the Commission will already have legislated in relation to these powers, and many of the Commission’s delegated and implementing Acts which resulted from the exercise of these powers are of course being rolled over into UK law. In these cases, there is therefore no longer a requirement for these powers to be drafted as obligations, as the obligation has already been discharged. However, the Secretary of State and/or the devolved Administrations might want to make those changes, as appropriate, in the future, and therefore “requires” becomes “allows”.

Motion agreed.