Draft Common Fisheries Policy (Amendment etc.) (EU Exit) Regulations 2019 Draft Common Fisheries Policy and Aquaculture (Amendment etc.) (EU Exit) Regulations 2019 Draft Common Fisheries Policy (Amendment etc.) (EU Exit) (No. 2) Regulations 2019

George Eustice Excerpts

Monday 25th March 2019 General Committees

[Luke Pollard (Plymouth, Sutton and Devonport) (Lab/Co-op)]

It is a pleasure to see you back in the Chair, Mr Davies. It is good to be in Committee for a second time today, albeit not in the same room—this time to debate fisheries.

I begin with the usual health warnings about the speed and the volume of the statutory instruments that are being pushed through. The Opposition believe that there are several glitches and gremlins in them that would have been caught with greater scrutiny and that could have severe consequences when it comes to implementation. We have concerns, which I will set out in turn, about all three instruments that the Committee will consider today.

Combined, the instruments represent about 190 pages of additional regulation. Concerns have been voiced by many of the stakeholders that we on the Opposition side work with about the sheer volume of legislation being pushed through, and about their ability to adequately scrutinise dense legal text and provide good scrutiny from a stakeholder perspective. Some 80% of UK environmental laws come from the EU.

[George Eustice (Camborne and Redruth) (Con)]

The hon. Gentleman will no doubt be aware that when these original regulations came from the EU, drafted by the European Commission, they probably came in the form of delegated Acts or implementing Acts that would have received little or no scrutiny in this House. These regulations, as with others under the European Union (Withdrawal) Act 2018, are just about making those powers operable.

[Luke Pollard]

I am grateful for that intervention. It is good to see the former Fisheries Minister, the hon. Member for Camborne and Redruth, in his place, and good to know that the Government now need not only a Fisheries Minister but a former Fisheries Minister to rebut some of the Opposition’s scrutiny.

The concerns that we are raising sometimes relate to the implementation and drafting of the regulations. As the hon. Member for Camborne and Redruth will know from the statutory instrument Committee we sat on earlier today, the Minister himself acknowledged that there was a gremlin in that particular statutory instrument, which we flagged up. Our concern is about what other gremlins are in the statutory instruments we are considering today, and how they will affect future considerations.

[Luke Pollard]

I am grateful to the Minister for making my point for me. The fact that mistakes have been made in that respect means that other mistakes could be made, which is why enhanced scrutiny is important in making sure that the regulations we are considering today—all 190 pages of them—are dealt with sufficiently robustly. These regulations affect one of our most important sectors, one that is especially important for those Members who represent coastal communities. As Business Green has noted,

“The pace at which draft legislation has been processed has been relentless…Parliamentary scrutiny has been creaking at the seams with MPs and peers often admitting they haven't had enough time to review the legislation thoroughly.”

I will now set out the Opposition’s concerns about these SIs, starting with the draft Common Fisheries Policy (Amendment etc.) (EU Exit) Regulations 2019. We have a number of concerns about how the powers provided for in section 8 of the European Union (Withdrawal) Act 2018 are being used. The drafting in a number of areas appears to be defective: it often fails to adequately correct the provisions of EU law, and makes a number of policy changes to the current provisions. Environmental organisations have got in touch with us to recommend that these common fisheries policy SIs be annulled and updated, because they fall short in a number of areas. I will take the Committee through the areas in which we believe the SIs, and this one in particular, are falling short.

These SIs risk creating a governance gap, placing responsibilities from EU bodies on to organisations that are yet to be created or sufficiently financed. They leave gaping holes in the area of enforcement, leaving fishers less safe and our waters less protected—a concern that the Opposition have raised about previous SIs. There is a risk that these SIs could degrade environmental standards, a point to which I will return when we consider electric pulse trawling. We have specific concerns about the Government’s ban on electric pulse trawling: it is a good example of a policy change hidden within these SIs, notwithstanding the Minister’s statement that there are normally no policy changes in such SIs.

I understand that the Minister will want us to hold our nose and vote these SIs through, because we are at risk of careering towards a no-deal Brexit. In the area of fisheries, unlike in other areas of Government scrutiny, the regulations are not necessarily in place if we do not pass these SIs, so we need to make sure we are using our time properly. However, given the extension from 29 March to 12 April, I suggest to the Minister that some provisions in these SIs should be looked at again and the instruments re-laid, so that they can be comprehensive and fulfil the role they are supposed to.

I am not trying to be difficult or fly a partisan flag, but the concerns about this SI were also highlighted last month by the Secondary Legislation Scrutiny Committee, on 6 February. Its report states:

“Given the significance of fisheries as a policy issue, the House may wish to explore further the approach the Government have taken with this instrument.”

We also reject these SIs being grouped together. That is one reason why we have asked for them to be taken individually, and why I will focus my remarks on each in turn.

I have mentioned the governance gap, which was raised by a number of stakeholders. That is a common theme that Ministers and Government Members will have heard about from the Opposition when responsibilities, especially oversight responsibilities, are being moved from EU bodies to UK bodies. Several provisions in the first common fisheries policy SI remove functions currently carried out by EU bodies, such as the European Commission, the Scientific, Technical and Economic Committee for Fisheries, the European Fisheries Control Agency and the Advisory Council, which are not replaced in this particular SI. The loss of monitoring, reporting and other governance requirements will seriously undermine the functioning and effectiveness of the law. I would be grateful if the Minister came back on that point when he gets to his feet.

Obligations to provide assessments from reports to the European Commission and the European Parliament have been removed, including the provision of data on stock quantities. Given the fact that we are leaving the European Union, that might not be an unreasonable assumption, but our concern is that no subsequent scrutiny functions are inserted. The oversight role that we are looking for is no longer there.

[George Eustice]

Surely when we become an independent coastal state we will re-join other bodies, such as the North East Atlantic Fisheries Commission. Through those bodies and our membership of the International Council for the Exploration of the Sea we will contribute our own scientific evidence. Does the hon. Gentleman not understand that the UK, year in, year out, regularly corrects data from the European Commission, through our Centre for Environment, Fisheries and Aquaculture Science?

[Luke Pollard]

I am grateful to the former Minister. Our CEFAS scientists are brilliant. He will know our concern that there is insufficient focus on science in creating truly sustainable fisheries with the Fisheries Bill. I take your note, Mr Davies, about not talking about things that are not in these SIs, but these SIs need to fit together with the Fisheries Bill, and that Fisheries Bill has sunk without trace. It is no longer being tabled. I am really concerned that the lack of a Fisheries Bill—indeed, of an Agriculture Bill for the associated one—means that the jigsaw that is being put together with these SIs is incomplete, and the fishers cannot see what type of environment is being created for them after we leave the European Union.

The former Minister is right about one element: after we leave the EU, some of those functions will be carried out by other bodies. However, there is no requirement in these SIs for those other bodies to pick up those requirements, nor is there a home for those scrutiny functions to sit in between leaving those EU bodies and becoming part of any future bodies. That is a concern, because it assumes that we will participate in those bodies in the future. I think some of the examples that the former Minister just raised are fair. However, the situation does not sit easily with me. We need to ensure that there is adequate scrutiny throughout.

[George Eustice]

Is that not just a product of the fact that we are becoming a self-governing nation again? We do not need to be held to account by an external body, but should hold ourselves to account.

[Luke Pollard]

Indeed. I suggest that the former Minister lobbies his colleague, the new Minister, to bring forward the Fisheries Bill, because without a Fisheries Bill we have no legal and legislative framework to hold ourselves together. The former Minister proves my point again, because we lack a Fisheries Bill. That may have been a concern of his when he was at the Department.

I return to this SI in particular. The key role that the Commission plays in the control and enforcement of the rules of the CFP has been removed and not replaced by this SI. Regulation 4(43) of this SI removes articles 96 to 118 relating to the European Commission’s control of the application of the CFP and Council regulations 1224/2009 by member states, including the requirement on member states to report on implementation. That reporting requirement is important, because it is about how we have decent scrutiny of any of the implications of this SI and how hon. Members—assuming they fulfil the role of scrutiny of the European Commission, previously performed by the European Parliament—are able to scrutinise the outcome of this SI.

References to “advisory councils” have been removed and not replaced in this SI. The Minister will know that the Opposition tabled amendments to the Fisheries Bill, to include advisory councils in the future fisheries regulation—a proposal that the former Minister encouraged Members on the Government Benches to vote down. The lack of formal stakeholder engagement means that the involvement of the fisheries industry is removed with the direct implementation of this SI, which is a point of concern not just for the Opposition, but many of those stakeholders.

The Secondary Legislation Scrutiny Committee highlighted in its report that the Department for Environment, Food and Rural Affairs argued:

“The oversight function that the Commission currently holds over Member States could, for England at least, be provided by the Office for Environmental Protection (OEP)”.

But in the event of no deal, that will not necessarily be provided. That is where stakeholders have created a governance gap. Indeed, the Office for Environmental Protection is, as hon. Members will be aware, coming down the track—not something that we can implement today. That creates the risk of a governance gap in this particular SI.

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[Mr Goodwill]

As far as I am aware, this is one of the issues that needs to be dealt with during the implementation period.

[George Eustice]

Does my right hon. Friend agree that, with other countries outside the European Union, such as Norway, we have in place framework agreements that set out our approach to joint fisheries management; that those agreements include provisions on data sharing; that the European Union has created a mandate for there to be a continuity agreement for the remainder of this year, which would cover such issues; and, indeed, that the Department already has advance plans for a future framework agreement to cover such matters?

[Mr Goodwill]

I thank my hon. Friend—having had five years in this job, he is well aware of the intricacies of some of the issues. However, the point that I am making is clear: the Prime Minister negotiated a 20-month implementation period to allow this and other measures to be agreed.

The hon. Member for Motherwell and Wishaw, who speaks for the SNP, said that we want to see continuity. That is precisely what this measure does: it ensures continuity. The measures agreed at the Fisheries Council before Christmas will continue past the date on which we leave the European Union. It has always been clear that that will be the case. I have to say to her, however, that members of the Scottish fishing industry—those to whom I spoke, anyway—are fully behind Brexit. They relish the opportunity we have to be an independent coastal state and to exploit the resource available to us.

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[Mr Goodwill]

I thank the hon. Gentleman for the question; Hartlepool is an important port just up the coast from my constituency. As I said, only three authorisations are in place for UK vessels. We are proposing to review that, with a view to withdrawing them. I am confident that we may well be in a position to be ahead of the EU in getting that ban in place.

[George Eustice]

Does the Minister agree that the UK has led the calls in the EU for that change? Far from responding and reacting to what the EU is doing, we will implement, through the changes he outlines, a ban on the majority of pulse trawling in our waters far sooner than the European Union.

[Mr Goodwill]

My hon. Friend is absolutely right—I can think of several instances where the UK has wanted to move ahead on environmental or animal welfare legislation. I am digressing slightly, but we are looking at dry sow stalls, battery cage legislation and veal crates. The UK moved ahead of, and faster than, the rest of the EU—it was not moving at the same speed as us. Although people say that leaving the EU will result in a degradation of our environmental and animal welfare legislation, that has no regard to our track record as a nation. Both parties have been keen to promote those topics and to move faster than the rest, so leaving the European Union will give us the opportunity to do that, rather than dragging behind.

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[Luke Pollard]

This draft instrument bears the brunt of my concern and the Opposition’s concerns about electric-pulse beam fishing. I am grateful to the Minister for doing my job for me by saying that there will be no changes in behaviour because of the draft instrument, and then in the next sentence saying that changes over time will build a more sustainable fisheries industry. Both cannot be true.

My concern relates mainly to the electro-pulse beam fishing method. There is widespread, cross-party condemnation of this method, as was raised in the Fisheries Bill Committee. I will spend a bit of time talking about those concerns in relation to the draft instrument.

The explanatory notes to the draft Common Fisheries Policy (Amendment etc.) (EU Exit) Regulations 2019 say:

“The technical changes made by this instrument are necessary to ensure that the rules contained in the CFP continue to operate effectively, so that fishing within UK waters continues to be regulated in a sustainable manner.”

However, our concern is that how sustainability will be provided is open to broad interpretation.

Provisions of the draft Common Fisheries Policy and Aquaculture (Amendment etc.) (EU Exit) Regulations 2019 replace certain duties on authorities to take action with powers. This is not only a legal change, but also potentially undermines the effectiveness of the law. The main concerns around this raised by stakeholders—some environmental and some from the industry—relate to conservation. Regulation 25(7) removes reference to article 7(3) of Council regulation 2018/973, which provides that emergency measures under the CFP should form part of remedial measures to restore stocks above maximum sustainable yield. That sounds very technical, but what it effectively says is that we must ensure there are sufficient fish in the sea for our fishing industry to fish, and the changes to that could be quite considerable. Provisions on conservation measures have also been removed and not replaced; regulation 3(5) of this statutory instrument removes articles 6, 7 and 8 on types of conservation measures and the establishment of fish stock recovery areas. That is a concern to a number of stakeholders who have got in touch.

Certain provisions of this SI, such as regulation 25(11), remove requirements for the UK to co-operate with other countries when taking measures to protect fish stocks. That presents a risk that the important role that other countries and European functions play in ensuring that fish stocks are maintained will be lost and not replaced. Further to the concerns raised about the first SI, the question is how we ensure that we have a functioning fisheries regulatory environment, especially when it comes to sustainability, as soon as we leave the European Union.

[George Eustice]

Is the hon. Gentleman not just alighting on the simple fact that after we leave the European Union, it will no longer be the role of the European Commission to enforce these things? Instead, it will be for us to enforce them ourselves. He is referring to the removal of a function from the European Commission, which is absolutely right and proper in the context of our leaving the European Union.

[Luke Pollard]

I like to think that scrutiny is a bit like energy. We cannot destroy it; it can only be moved from one function to another. If we are taking scrutiny away from the European Commission, it must be placed somewhere else, and that is not what this SI does.

Our main concern with this SI relates to the phony ban on electric pulse beam trawling. Crucially for us, this SI had the potential to create commonality—a common bond between the Opposition and the Government on the need to ban this cruel fishing method. As my hon. Friend the Member for Hartlepool said, this fishing method is cruel. The voltage used by some fishers can be so high that it breaks the vertebrae of the fish they are dealing with. Given how strong a fish is, a considerable amount of force is needed to break those vertebrae, and that involves a level of cruelty that I think the people who sent us to this place would find completely unacceptable.

The Minister will know that the Opposition have significant concerns about this ban. It does not go far enough, it is open to abuse and it fails to make good on the promises that I believe were made by his predecessor in the Fisheries Bill Committee, where the Opposition tabled amendments that, by my rough arithmetic, would have passed if we had not withdrawn them.

[George Eustice]

Will the hon. Gentleman give way?

[Luke Pollard]

I have not even got to my main point, but I am happy to give way.

[George Eustice]

As the Minister at the time who made that offer, I completely refute the hon. Gentleman’s allegation that this does not live up to what was offered. It was made clear in Committee that the derogation that applied particularly to the 87 or so Dutch vessels would not be carried into domestic law, but it was also made clear that the small number of Scottish vessels—I think there are three or four—that practise that method would still be subject to that derogation, but obviously it would be open to the current Minister, or indeed a future Minister, to change that through licensing regulations.

[Luke Pollard]

The hon. Gentleman tempts me to move ahead with my speech; I will run through the first bits, and then, if that does not address the point, I am happy to come back to it.

This controversial form of fishing in UK waters is done mainly by Dutch trawlers operating under a phony scientific derogation. They have effectively built a commercial fishery in electric pulse beam fishing—a fishing method that has caused excessive harm to our marine life. British fishers and conservationists warn that it is wreaking havoc on our sea bed, and there are reports that large parts of our sea bed have been turned into graveyards after this method has been used in the waters above them. It is powerful enough to break the vertebrae of large cod, and it is thought that similar damage and suffering is being inflicted on other sea life.

The previous Minister and I were corresponding on this issue before he resigned from the Government. I thank him for responding to my feedback, but it was unfortunate that he decided not to accept it. The Opposition were trying to create a comprehensive ban that would have ensured that this fishing method was not seen in our waters. In Committee, we withdrew an amendment that would have put a ban in the Bill. Following the Minister’s response to the amendment, I was more than happy to grant him the opportunity to correct the situation.

Although we welcome the idea of introducing a provision in the SI to ban electric pulse beam fishing, we do not believe that this one goes far enough, because, as the explanatory notes state, far from removing the ability for any boats to fish with this method, it includes a derogation. Page 16 of the explanatory notes—hon. Members may wish to read this for themselves—states:

“The derogation will therefore permit the authorisation of up to 5% of all the beam trawlers in the United Kingdom fleet to use the electric pulse trawl, along with certain other conditions that remain the same as before EU Exit.”

To me, a ban on a fishing method means that no one can use it. Allowing 5% of beam trawlers to use that method sounds like authorising a large number of fishing boats to use it.

[George Eustice]

Is that not simply a product of the fact that the EU withdrawal Act says that we should not change policy? We should simply bring across EU policy, and the 5% the hon. Gentleman mentions is EU policy. The best that we could do with this SI is remove the derogation for the Dutch vessels that make up the vast majority of those using this technique.

[Luke Pollard]

The former Minister hits on the problem. The SI does not do what it needs to. The commitment given when the Committee amendment was withdrawn was that an SI would come forward that would comprehensively ban electric pulse beam trawling. That is not what the SI does. It opens the window for up to 5% of all beam trawlers in the UK to use electric pulse trawl, and certain other conditions remain the same as before. That is not the ban that we need.

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[Luke Pollard]

When the Minister got to his feet, I was looking to him to commit to removing that 5% derogation and ban the practice completely. That is what the Opposition are looking for and what hon. Members on the Government Benches, who have fishing communities that have been trimmed from the SI, also want.

If we are to have truly sustainable fisheries, which is the ambition set out in the fisheries White Paper, we must not allow a loophole through which up to 5% of beam trawlers can use this method. Conditions might change; we need to ensure that fishing regulations are future-proofed. Otherwise, all we are doing is simply allowing a loophole that will need to be addressed in future.

We are very concerned about the 5% figure. I would be grateful if the Minister could set out how he intends to remove any loopholes from future regulations. Potentially allowing 200 boats—5% of beam trawlers—to use this fishing method in future opens the opportunity for considerable pain.

I would also like the Minister to edit this part of the SI to include additional protections. The former Minister set out the need for occasional scientific derogations, to investigate whether elements of technological change in pulse beaming could be more sustainable, but clear parameters should be set around that.

The Minister missed a trick with regard to public consultation, and when he said there was no prohibition on this type of fishing activity in marine protected areas, or within 12 nautical miles of the shore. We believe there should be strict punishments and proper enforcement.

I am conscious that hon. Members wish to return to the main Chamber, so I will not keep us on this point much longer. Our concern is that the SI creates a loophole in law and does not set out a clear enough vision or certainty that this method will be banned. I would like to see the SI brought forward again with that loophole removed, in which case the Opposition would be happy to support the Minister.

[George Eustice]

Does not what the hon. Gentleman is asking for violate the essential principle of the European Union (Withdrawal) Act? It is not there to change policy. What he is asking for should be delivered through the Fisheries Bill, which, as he knows, has passed its Committee stage and will, we all hope, return to the House shortly.

[Luke Pollard]

I am grateful to the former Minister for that comment. As he will recall, in a room very similar to this one, he made the commitment that an SI would be brought forward before we left the European Union that would comprehensively ban electric pulse trawling.

[George Eustice]

That is not what I said. I said that we would not bring across the derogation for non-UK vessels, and that is what the SI delivers.

[Luke Pollard]

I am grateful to the former Minister for seeking to clarify his words. The fact is that the SI provides a 5% loophole for this cruel and unsustainable fishing methodology to be used in UK waters. It does not provide a ban as soon as we leave the European Union—the Opposition withdrew the amendment to the Fisheries Bill because we thought it would—nor does it seek to close loopholes that could be used in the future.

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[Luke Pollard]

The Minister will be unsurprised to know that I have similar concerns about the governance gap in these regulations, and about how they fit with the Fisheries Bill. I appreciate that the Minister may want to call it a Fisheries Act, wishing that it had gone through its parliamentary stages, but it is a Fisheries Bill—at the moment, it is a missing Fisheries Bill—and we need to ensure that it fits with this SI so everything works together.

The Minister talked about the removal of TACs, and I will return to that concern in a moment. More broadly, our concerns about this SI relate to conservation and governance gaps. They are similar to the concerns we set out in relation to the previous two SIs. The requirement to report certain catches against gear type has been removed—that is regulation 6(10)(c)(ii), for people following this closely—but it has not been replaced by an obligation to report that anywhere else instead. The Minister may say that that will be in the Fisheries Bill, but the Fisheries Bill does not exist in the way we want. It is not going through its parliamentary process, so that level of oversight and governance has been lost. The Minister says it is business as usual, but it is business as usual with only minor scrutiny. We have concerns about that. The provision stating that total allowable catches should be set in line with the principle of sustainable exploitation and consistent with maximum sustainable yield have been removed in this SI.

Regulation 6(7) omits article 6 of Council regulation 2019/124, which states that total allowable catches should be set in line with the principle of sustainable exploitation and should be consistent with maximum sustainable yield. The Opposition have raised concerns throughout the fisheries SI process, and during the Fisheries Bill, that if we remove the requirements to fish at a sustainable level and do not replace them with robust requirements to ensure our seas are fished sustainably, there is a risk that our fishing may be at unsustainable levels in future. When the hon. Member for Camborne and Redruth was the Minister, I had great confidence that he would not set catches above sustainable levels, although I recognise that they have been set in some cases leading up to this point. I hope that the current Minister would not do such a thing either, but that is not to say that any future Minister, buoyed by political concerns or otherwise, may not be tempted to do that.

[George Eustice]

Is it not the case that in doing so they would be in breach of other international fisheries obligations that we have?

[Luke Pollard]

I am grateful for the former Minister setting that out, but we know that there is fishing above sustainable levels today. Mackerel losing its sustainable status just a few weeks ago shows that all our fisheries in the UK are not being fished at sustainable levels at the moment, but they need to be. Given the risk of fishing populations changing due to climate change, we need to ensure that there is an adequately responsive deal on fisheries.

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[George Eustice]

Is the hon. Gentleman aware that the UK has no right to represent itself in the mackerel negotiations with countries such as Norway and the Faroe Islands? That is done by the European Union. Insofar as there is a problem, it is literally the fault of the European Union.

[Luke Pollard]

The lack of fish in the sea is also about overfishing and the regulatory environment that deals with overfishing. The solution to restoring mackerel stocks to sustainable levels will not be about pinning blame on whichever body, but about making sure that fishing levels are set at a sustainable rate, so we are not overfishing stocks, especially those on the decline due to poor recruitment or overfishing. We have to be clear about that.

I have been through most of my concerns about the governance gaps in the statutory instruments, so I will not keep the Committee any longer. I would be grateful if the Minister could set out where our total allowable catches lie, and his vision for the Fisheries Bill. Perhaps he could say when he expects the Fisheries Bill to return, so we can see how this statutory instrument would fit in with any provisions the Government propose in future.