Draft Fisheries (Amendment) (EU Exit) Regulations 2019

George Eustice Excerpts

Tuesday 29th January 2019 General Committees

[The Minister for Agriculture, Fisheries and Food (George Eustice)]

I beg to move,

That the Committee has considered the draft Fisheries (Amendment) (EU Exit) Regulations 2019.

I am pleased to open this debate on an important set of regulations, and I am grateful to hon. Members for being here when, obviously, another debate is taking place in the main Chamber. The regulations give effect to, and enable enforcement of, certain common fisheries policy and marine management measures, as part of the legislation needed for exiting the European Union. The regulations are one piece of a jigsaw that will ensure we have a functioning legislative framework when we leave the European Union. This statutory instrument is one of two that work together to amend fisheries legislation to make it operable for EU exit. A separate statutory instrument—the Common Fisheries Policy (Amendment etc.) (EU Exit) Regulations 2019—has been laid in draft and will be debated at a later date. It amends the vast majority of directly applicable EU regulations, for example those concerning illegal, unreported and unregulated fisheries.

The SI under consideration today makes consequential amendments to various pieces of domestic legislation that are used to enforce and enable the implementation of those directly applicable EU regulations. The primary legislation amended is the Sea Fish (Conservation) Act 1967, the Fisheries Act 1981 and the Marine and Coastal Access Act 2009. The amendments predominantly relate to enforcement powers. The secondary legislation amended is the Merchant Shipping Regulations 1993, the Sea Fisheries (Northern Ireland) Order 2002, the Tope (Prohibition of Fishing) Order 2008, the Eels (England and Wales) Regulations 2009, the Sea Fishing (Illegal, Unreported and Unregulated Fishing) Order 2009, the Fish Labelling Regulations 2013, the Sea Fishing (Points for Masters of Fishing Boats) Regulations 2014, the Sea Fishing (Enforcement and Miscellaneous Provisions) Order 2015, the Grants for Fishing and Aquaculture Industries Regulations 2015, and the Sea Fishing (Enforcement) Regulations 2018.

These lucky 13 pieces of legislation are simple and technical, to ensure that they operate correctly after EU exit. There are no changes to policy contained in the instrument. The instrument was considered by the Secondary Legislation Scrutiny Committee and the Joint Committee on Statutory Instruments, and no concerns with the regulations were raised by either Committee. The former asked that we provide further explanation about the nature of the amendments. That has now been published in annex B of the revised explanatory memorandum.

The instrument is affirmative, as it amends existing powers to legislate, in particular in section 30(2) of the Fisheries Act 1981, and in the Sea Fisheries (Northern Ireland) Order 2002. The statutory instrument has therefore not been examined by the withdrawal Act sifting Committees.

[Martin Whitfield (East Lothian) (Lab)]

I rise to raise two issues with regard to section 30 of the Fisheries Act 1981, because of the effect it has on England and Wales, and on Scotland. Regulation 3(4)(b) under part 2, “Amendment of primary legislation”, mentions

“enforceable Community restrictions, and enforceable EU obligations”.

My understanding is that the Fisheries Act also refers to “enforceable EU restrictions”, so I wonder whether the intention is to leave in “enforceable EU restrictions” or to remove that part and replace it with something else. I rise as a new member of the Committee, unsure about how we go about amending a statutory instrument once it passes through here.

The same question arises with regard to regulation 3(4)(c), which states, in relation to section 30(2) of the Act,

“for ‘enforceable Community restriction or other’ substitute ‘retained EU restriction or retained EU’”.

It seems to be silent with regard to the enforceable EU restriction contained in the Act.

[George Eustice]

If there are any different answers, I will consider them before coming to my closing remarks, but I think the answer is that in all these cases our intention is to bring across retained EU law, the enforcement of which would then be done domestically. I suggest to the hon. Gentleman that we do not want to retain anything in our domestic statute that could in future be enforceable by the EU itself. The purpose of the European Union (Withdrawal) Act 2018, and indeed of these statutory instruments, is to ensure that we have an operable law book on day one, without leaving open the idea that the European Union could enforce anything under those.

[Martin Whitfield]

I am grateful for that explanation. It is therefore my understanding that the reference to EU restrictions would also have to be removed from the 1981 Act.

[George Eustice]

My view is that they should be retained EU restrictions, but I will have a specific look at that before the end of this debate. Those restrictions would be retained EU restrictions rather than EU restrictions per se.

The amendments made by this statutory instrument fall into four main categories. First, where there are references to “an enforceable EU obligation” or “enforceable EU restrictions”, these are amended to “a retained EU obligation” or “retained EU restrictions”, to ensure that they remain operable as part of retained EU law. For example, section 30 of the Fisheries Act 1981, which we have just discussed at some length, concerns the enforcement of EU rules relating to sea fishing. Amendments to section 30 change references to enforceable Community or EU obligations and restrictions to retained EU obligations and restrictions, to ensure continued operability of those enforcement provisions on EU exit. I hope that point reinforces what I have just explained to the hon. Member for East Lothian.

Secondly, there are some provisions that will be redundant or inoperable in UK law after EU exit. For example, paragraph 5 of schedule 4 to the merchant shipping regulations refers to an “EC number” in the list of details to be recorded on the register of British fishing vessels. That has been removed. Likewise, a reference to euros has been converted to pound sterling in the fish labelling regulations.

Thirdly, references to “member state or third country” are replaced in future simply with “third country”, because in this context existing EU member states will be categorised as third countries after we leave the European Union. For example, in article 3 of the Sea Fishing (Illegal, Unreported and Unregulated Fishing) Order 2009, the definition of a third-country fishing vessel, which was

“a fishing vessel which is not a Community fishing vessel”,

has been amended to,

“a fishing vessel which is not a United Kingdom fishing vessel”.

Finally, cross-references to EU regulations are amended to bring them into line with technical amendments made to those regulations in the main Common Fisheries Policy (Amendment etc.) (EU Exit) Regulations 2018. For example, in the fish labelling regulations, the designation of the Secretary of State to draw up a list of commercial designations of species has been deleted, because that is now provided for in Council Regulation (EC) 1379/2013, as amended by the main common fisheries policy SI. This is a consequential amendment arising from the amendments made by that SI.

This SI and the other UK-wide fisheries SIs have been developed and drafted in close co-operation with the devolved Administrations, reflecting the devolution settlements. The amendments made by this instrument mainly extend and apply to the United Kingdom, with some exceptions, so each of the devolved Administrations were heavily involved in developing the approach. A targeted engagement was carried out for the fisheries SIs, involving key stakeholders from the fisheries sector, the food industry and environmental non-governmental organisations. Additionally, a 10-week consultation was conducted through the fisheries White Paper, which described future fisheries policy as well as the legislative approach taken by these statutory instruments. Stakeholders were broadly supportive of the approach.

This legislation is complemented by the Fisheries Bill, which will deliver our promise to take back control of our waters and decide who may fish in them and on what terms. It creates the powers to allow us, over time, to build a sustainable and profitable fishing industry. I commend the regulations to the Committee.

--- Later in debate ---

[George Eustice]

The hon. Gentleman’s comments went somewhat outside scope towards the end. I will first address those pertinent to this particular order and then touch on some of the points he made at the end, although obviously they are also for discussion at a later date.

The first point to make, which is important, is that it is great that Parliament has—for the first time—the opportunity to debate these issues at all. Let us not forget that, as an EU member, our Parliament scarcely debated these technical issues: they came down through delegated Acts from the European Commission, and there was no parliamentary scrutiny or involvement at all.

Indeed, in the context of the so-called Henry VIII powers, it is important to recognise that probably the largest Henry VIII power used in recent times was the European Communities Act 1972 itself, which used to change our primary legislation willy-nilly. Many of the changes we are making to primary legislation here are simply changing a reference from EU law to retained EU law, when the power itself was initially created by that 1972 Act. Let us recognise that, in bringing forward these statutory instruments, we are re-establishing parliamentary scrutiny to this area for the first time in almost half a century. I welcome that.

The hon. Gentleman asks how many of these statutory instruments the Department for Environment, Food and Rural Affairs has; he mentioned that there were over 300 in total. As he may know, the Department for Environment, Food and Rural Affairs has 98 statutory instruments to get through. He asks when we will get those passed. We will do that by exit day on 29 March. We all recognise—and it has been speculated about—that, if necessary, Parliament may have to sit longer hours to ensure that we get this job done on time. But it is absolutely our plan and intention to lay all those 98 regulations, and to pass them in time for exit day on 29 March.

The hon. Gentleman asked about the grouping. There is a large number of these SIs, so it makes sense to group them. The methodology we are applying is simply to do with the similarity of subjects. I will explain this in the context of these SIs: had we laid the second SI that deals with directly applicable EU law in time, I probably would have advised that we group the two together. But in the event, that one was not laid before this one had a debating slot, so I said we should press ahead with this one anyway. The two go reasonably well together, however, and that is why I alluded to it in the first instance. One deals with directly applicable EU law and the other deals with consequential amendments to domestic EU law, particularly around enforcement. In all other areas, where they cover similar subjects but where—for good legal order—it makes sense to have them on separate orders, we are seeking to group those.

The hon. Gentleman also asked about the term “retained EU obligation” and wanted me to explain what that means. That meaning is set out clearly in schedule 8 to the European Union (Withdrawal) Act 2018. On page 92, it defines a “retained EU obligation” as meaning an obligation that, first,

“was created or arose by or under the EU Treaties before exit day”

and, secondly,

“forms part of retained EU law”

as modified from that time. That interpretation was set out in the European Union (Withdrawal) Act 2018, and that amendment made consequential changes to the Interpretation Act 1978. The legal understanding of a “retained EU obligation” is clear and already in statute, and therefore does not need to be addressed in this order.

The hon. Gentleman asks what we mean by “no impact”, and how we can possibly know that there is no impact, or no meaningful impact. I simply say this: it is because, right across the board, these statutory instruments are—by definition—about simply continuing, as far as we are able to, the legislative book that we have, so that on day one of leaving the European Union our legal book is exactly the same as it was on day one before we left, save that there will be different institutions and Government Ministers responsible for enforcing those.

The reason why we can confidently say that there will be no impact is that we seek to make no change with the regulations. On whether there will be any meaningful impact in some cases, one could argue that if someone was changing currency from euro to sterling, there might be some familiarisation issues. If one was changing the precise nature of what needs to be recorded on a particular piece of paper, there might be some mild familiarisation issues. We think that those will be negligible, but they are why we include the term “no significant impact”.

The hon. Gentleman asked about our scientific expertise. We will be re-joining the International Council for the Exploration of the Sea and will play a full part, as an independent coastal state, to develop science for our fisheries. It is also important to recognise that, although the European Union has a role in interpreting some of the science and making recommendations based on it, the collection of the science is done largely by CEFAS—our own fisheries science agency—through its survey vessels, such as the Endeavour, and through some of the other data that it captures. The collection of the raw data of the science is currently done by CEFAS, which is a world-leading agency. Indeed, it is probably the most important contributor to the EU understanding of fisheries science, and we will continue to have access to that after we leave.

The hon. Gentleman made a number of other points. He asked me to comment on coked-up eels in the Thames. Obviously, that is some way outside the scope of the regulations, but I am sure that we will be able to address the issue should it become a problem once we are an independent coastal state and can tackle such issues. Obviously, the report was a matter of some concern. He also asked specifically about the eel regulations and, in particular, why regulation 11 had been omitted. I am told that that was a time-limited provision applicable only in 2010, so it was therefore a redundant provision that it would have made no sense to keep in the SI.

[Luke Pollard]

Coked-up eels are an important issue, although I did seek to make light of it. There are two paragraphs in regulation 11 of the 2009 regulations, which was omitted. Paragraph (2) is the time-limited element and came to an end in 2010. Paragraph (1), however, did not. I would be grateful if the Minister asked his officials to look at the difference between paragraphs (1) and (2).

[George Eustice]

I will seek clarification and may get an update on the difference between paragraphs (1) and (2) before I conclude my comments.

The hon. Gentleman also made some comments about the replacement for the EMFF. As he will know, the Fisheries Bill, which we debated in Committee, creates the powers for us to issue grants to coastal communities and to fishermen to help them invest in more selective gear. It is absolutely our plan to replace the EMFF funds with future fisheries funds to support selective fishing and our coastal communities.

On pulse fishing, nothing has changed. Our intention is absolutely to bring a statutory instrument forward. Hon. Members will have noticed that these days, the House has a just-in-time delivery approach to legislation and agreements, but I absolutely stand by the undertaking that I gave.

Our intention is to lay the instrument during the month of January, but I will share it with the hon. Gentleman and with my hon. Friend the Member for Waveney, who tabled an amendment to the Bill on the matter, before the Bill reaches Report. I repeat that undertaking, which I gave to the hon. Gentleman, and I hope that we will lay that particular instrument before the end of the month. If we do not, because we are unable to achieve those best endeavours as we had hoped in December, we will nevertheless not move to Report until we have done so and the hon. Gentleman and my hon. Friend have had an opportunity to debate it.

In conclusion, these amendments are simple but necessary to ensure that certain CFP and marine management measures continue to operate effectively and can be enforced after the UK leaves the EU. The technical connections to domestic legislation are important to enable the continued enforcement and maintenance of sustainable fisheries management in the UK. The instrument marks an important step towards having a cohesive statute book for exit day and provides us with a solid foundation.

[Martin Whitfield]

I hope the Minister can satisfy two problems in one. To return to my earlier intervention, is he satisfied that the drafting in the statutory instrument gets over the problem of its miswording as compared with the Act? Does it achieve what he wants to achieve—to transfer the EU regulations and make them enforceable, albeit with a different title?

[George Eustice]

Yes, I am satisfied, based on the point I raised with the hon. Gentleman earlier. Replacing

“enforceable Community restrictions, and enforceable EU obligations”

with

“retained EU restrictions and retained EU obligations”

covers all those things. It is very clear that the provision is in the context of retained EU obligations and restrictions, rather than EU obligations and restrictions themselves.

[Martin Whitfield]

For my own satisfaction as much as anything else, the 1981 Act talks about

“enforceable Community restrictions, enforceable EU restrictions, and enforceable EU obligations”,

yet the quote that has been lifted—the quote that will be replaced—discusses only

“enforceable Community restrictions, and enforceable EU obligations”.

It therefore omits four crucial words. The SI then repeats the four words by putting them back in. The thing that concerns me is that when people come to reconcile the 1981 Act with the statutory instrument, there may be a duplication or error, in which case people will have to go back to statutory interpretation. They may need to have to look at the notes to decide what we meant.

[George Eustice]

What I will do is check the hon. Gentleman’s point and write to him. This is a point he has persisted with. I feel I have answered him, and from the notes I have seen, I am satisfied that the regulations address the two things and catch all the possibilities. I will double-check the specific point he makes just to ensure there are no omissions in the language.

I turn to the point that the shadow Minister raised about the all-important eels regulations. Regulation 11(1) states that it

“applies where the Agency determines that a reduction in the fishing effort for eels is required in order to comply with Article 5(4)”.

Article 5(4) is being deleted, because it relates to the setting up of eel management plans. That has already been completed. The two provisions are linked, in that one was effectively a requirement on the Environment Agency to determine those reductions, but that was in the context of the bit we deleted. Both become redundant, since they relate to one another.

In conclusion, we have had a comprehensive discussion on the regulations. I am grateful to Members for raising points of detail on them, which are important. The shadow Minister is right that we need to get it right. We have embarked on a huge endeavour.

[Luke Pollard]

Before the Minister sits down, will he address the point about parliamentarians having access to the pre-lay reading room? If he cannot answer that immediately, will he endeavour to write to us? An element of additional scrutiny is needed, especially considering the volume of SIs and the speed with which the Government intend to bring them forward. There is a lack of an opportunity to scrutinise. Scrutiny of SIs would normally happen every now and again, but in this time there is a risk of it happening every single day, and we may miss out on the opportunity. It should be made easier. Will the Minister endeavour to write to me?

[George Eustice]

The hon. Gentleman raises a valid point, but it goes beyond something I am able to agree here, since the Government across the board are looking at the issues and different Departments are approaching them in different ways. I will take away his suggestion.

The hon. Gentleman asked a question about stakeholders. We are fairly open to allowing them to come in and discuss any concerns they have with us. We have a comprehensive list of fisheries stakeholders, notably the green NGOs, which already attend a number of the events we have. All the fishing representative organisations are invited as well. I commend the regulations to the Committee.

Question put and agreed to.

Resolved,

That the Committee has considered the draft Fisheries (Amendment) (EU Exit) Regulations 2019.