Fisheries Bill (Eighth sitting)

Brendan O'Hara Excerpts

Thursday 13th December 2018 Public Bill Committees

[George Eustice]

Briefly, clause 18 sets out in legislation the power of the Secretary of State to determine the UK�s fishing opportunities. He can do that by setting out the maximum quantity of sea fish that may be caught by British fishing boats and of days that British fishing boats may spend at sea in a calendar year. The effect of clause 18 is that the Secretary of State can ensure that the UK complies with its obligations to determine fishing opportunities, in line with international agreements.

Question put and agreed to.

Clause 18 accordingly ordered to stand part of the Bill.

Clause 19

Duties relating to a determination of fishing opportunities

[Brendan O'Hara (Argyll and Bute) (SNP)]

I beg to move amendment 2, in clause�19,�page�10,�line�38,�at end insert�

�(A1) A determination under section 18 may not be made or withdrawn without the consent of the Scottish Ministers.�

[The Chair]

With this it will be convenient to discuss amendment 3, in clause�19,�page�10,�line�41,�leave out paragraph (a).

[Brendan O'Hara]

It is a pleasure to see you back in the Chair, Mr Hanson. I rise to speak to amendments 2 and 3, which appear in my name and the names of my hon. Friends the Members for Kilmarnock and Loudoun and for Edinburgh North and Leith (Deidre Brock). The amendments would ensure that a determination under clause 18 could not be made or withdrawn without the consent of Scottish Ministers.

In moving the amendments, we agree with the Scottish Government�s position that clauses 18 and 19 run contrary to the devolution settlement and will seriously undermine the existing long-held powers of Scottish Ministers. We also share the Scottish Government�s concern that clause 18 deals with matters that fall squarely within the legislative competence of the Scottish Parliament in relation to complying with international obligations. Although we accept that the United Kingdom is still responsible in international law for compliance with its international obligations, it does not automatically follow that the UK Government alone and in isolation are responsible for implementing and complying with those obligations in domestic law.

Of course, I do not need to remind hon. Members about paragraph 7(2) of schedule 5 to the Scotland Act 1998, which makes it absolutely clear that the observance and implementation of international obligations are not reserved matters. According to the 1998 Act, if powers are not reserved, they are devolved. Although I understand the UK Government�s view that the function being executed in clause 18 can be exercised UK-wide, it remains the case that the purpose of the clause relates to matters that are wholly devolved.

As currently drafted, clause 19 requires the Secretary of State only to consult with the devolved Administrations before making a determination regarding fishing opportunities in Scottish waters. For example, does the Minister intend to set quotas for Orkney crab, as clause 18 effectively gives him or the Secretary of State the power to do? Does the Minister intend to tell Scottish lobster fishermen how many days they can go to sea, as clause 18 gives him or the Secretary of State the power to do?

Our amendment seeks to defend the devolution settlement and require the Secretary of State to obtain a legislative consent motion from Scottish Ministers before seeking to legislate on any matters relating to the Scottish zone and the regulation of Scottish fishing boats outside of the Scottish zone, again, as safeguarded in section C6 of schedule 5 to the Scotland Act 1998. The legislative consent motion on the European Union (Withdrawal) Bill, which was submitted to the Scottish Parliament in September 2017, sets out clearly that the Scottish Government�s position is that policy responsibility and expertise for matters within devolved competence lies solely with the Scottish Government, which is accountable to the Scottish Parliament. In these amendments, we are asking the UK Government to respect that position.

[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.

--- Later in debate ---

[George Eustice]

The purpose of clause 19 is to establish a requirement for the Secretary of State to consult the devolved Administrations. As other hon. Members have pointed out, this matter and the powers outlined in clause 18 are incontrovertibly a reserved UK matter. The amendment would undermine the power of the UK to determine UK resources for the purposes of international law, and relates directly to a UK function.

Where the UK is subject to an international obligation to achieve a result by reference to a fixed quantity for the UK as a whole, the UK Government are responsible for determining how that is achieved. In this case, the responsibility will fall on the UK, under the UN convention on the law of the sea, after we leave the EU.

Compliance with or implementation of international obligations is devolved, but determining UK fishing opportunities is not a function that is exercisable separately in or as regards Scotland or any other part of the UK. It is not within devolved competence to determine, or to block the UK Government from determining, fishing opportunities for the UK as a whole.

Clause 18(2) explicitly sets out:

�A determination under subsection (1) may be made only for the purpose of complying with an international obligation of the United Kingdom to determine the fishing opportunities of the United Kingdom.�

It makes crystal clear the scope of clause 18. It cannot relate to any devolved matter at all; it can relate only to matters relating to the UK�s compliance with international obligations. It would therefore not be appropriate to seek consent from any devolved Administration when determining fishing opportunities. In clause 19, we set out something that we think is reasonable: a requirement to consult.

[Brendan O'Hara]

I thank the Minister for his reply. As I said on day one, the Scottish Government and Scottish Government officials have worked very closely with him and his officials�for which we are very grateful�and this was one of the few major sticking points. I am disappointed that we do not appear to be able to take this further, but I reiterate that we believe that the amendment is entirely in line with the Scotland Act 1998, and I will therefore press it to a vote.

I am disappointed but not at all surprised by the contribution of the hon. Member for Glasgow North East. Members of the Scottish National party are here at least to defend the devolution settlement, which makes it perfectly clear that if a matter is not reserved, it is devolved. As my hon. Friend the Member for Kilmarnock and Loudoun said, the powers that come back from Europe should go to the relevant devolved authority. In this case, I believe it should be the Scottish Parliament. That is why a legislative consent motion should be sought, rather than simply consultation.

[Mr Sweeney]

To clarify, section 58 of the Scotland Act 1998 makes it quite clear that this is an international obligation, and therefore the Secretary of State supersedes any devolved decision that would undermine the UK�s international obligations. This issue has a clear interface with the UK�s international obligations. Therefore, it is entirely consistent with what the Scottish people democratically voted for in the referendum that created the Scottish Parliament and the Scottish Government, and with the increased scope of the devolved powers under the Scotland Act 2016. Therefore, in our view it is entirely consistent with the Scottish people�s decisions.

[Brendan O'Hara]

I fundamentally disagree. I do not want to take up much more of the Committee�s time with dancing on the head of the pin of the Scotland Act, but let us be absolutely clear that the observance and implementation of international obligations is not reserved. It is not the sole responsibility of this Parliament and the United Kingdom to implement and comply with such obligations. I therefore wish to press the amendment to a vote.

Question put, That the amendment be made.