Fisheries Bill [HL]

Lord Gardiner of Kimble Excerpts

Committee stage & Committee: 3rd sitting (Hansard - continued) & Committee: 3rd sitting (Hansard - continued): House of Lords
Monday 9th March 2020 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)]

My Lords, I thank the noble Baroness for her amendment. The UK Government’s robust fisheries enforcement system is delivered in England by a number of agencies working in partnership, in particular the Marine Management Organisation, or MMO, the inshore fisheries and conservation authorities, or IFCAs, and the Royal Navy. Fisheries enforcement is a devolved matter, with each Administration ensuring that appropriate control and enforcement matters are in place in its waters.

As I am sure noble Lords are aware, the UK has recently taken significant steps and we have been working closely with the devolved Administrations to ensure that the UK can enforce its fishing rights. As the noble Baroness said, the Royal Navy is increasing its force of offshore patrol vessels, or OPVs, from four to eight ships over the next year. Currently, four are operating at sea, conducting enforcement and overseas tasking, with four in build or regeneration. Of these, at least—I emphasise the “at least” to the noble Baroness—two Royal Navy OPVs are always provided to support MMO activity in English waters.

The MMO’s core provision includes two offshore patrol vessels and up to two aircraft. IFCAs provide an additional layer of inshore surface surveillance capability, which includes 22 vessels. Administrations share assets when appropriate. This may be as a joint working, MoU or chartering arrangement. For example, the MMO and the Welsh Government have agreed an MoU to undertake joint working and patrolling in each other’s waters.

Marine Scotland’s aircraft and patrol vessels have operated in other Administration’s waters, and it is receptive to requests for its assets to assist when possible. Marine Scotland operates a fleet of three marine protection ships and two surveillance aircraft. In Northern Ireland, DAERA has one fisheries protection vessel, accompanied by two fast-response rigid inflatable boats, or RIBs, dedicated to inspection work. Wales operates three vessels: a 24-metre monohull, a 19-metre catamaran and a 13-metre fast response cabin RIB.

In respect of England, via the MMO we have increased the number of front-line warranted officers by 50% for 2019-20, which is 35 people, putting in place a framework to increase aerial surveillance capacity by a maximum of two surveillance aircraft as risk and intelligence demands and chartering two additional commercial vessels to enable an increase in routine sea-based inspections to supplement provision from the Royal Navy Fishery Protection Squadron. I say to the noble Baronesses that it is one of the oldest front-line squadrons in the Royal Navy. It goes back many centuries and has a long history of dealing with these matters. There have been all sorts of instances in the past and, if this were to occur again, I am confident that our service men and women would have the ability and knowledge to deal with these matters proportionately and sensibly.

Additionally, it is also important, since we had an earlier discussion about this, that surface patrol vessels are complemented by satellite-based surveillance technologies such as vessel monitoring systems, or VMS, and electronic reporting systems, or ERS, monitored by the MMO from Newcastle. The noble Lord, Lord Teverson, will know about this, but when I and the noble Lord, Lord West of Spithead, went to the MMO, this was a feature of every vessel we were taken through. I am sure that the MMO would be very pleased for noble Lords to look at this interesting capability. I would be very happy to facilitate that.

These provisions are in line with the MMO’s latest assessment, based on a risk-based, intelligence-led control and enforcement strategy. This is regularly monitored and reviewed, which is entirely appropriate to ensure that in all circumstances we are receiving that assessment.

The amendment’s proposed requirement for a Minister to declare the UK Government’s fisheries enforcement resources sufficient duplicates our existing policy and procedure. In addition, noble Lords will also be aware of the Joint Maritime Operations Coordination Centre, or JMOCC, which was officially approved by the Home Secretary in October 2017. The JMOCC has enhanced the co-ordination of cross-agency patrol capabilities, increased information and resource sharing, promoted prioritisation across government assets and enhanced aerial surveillance operations to derive maximum surveillance benefit. In place in its operational headquarters, the JMOCC has highly trained and professionally qualified representatives from key stakeholders, including Border Force, the Ministry of Defence, the Department for Transport, the National Maritime Information Centre and the police, as well as the MMO and Marine Scotland. This ensures that available resources can be fully and appropriately utilised across the United Kingdom, thereby maximising our maritime capability, including fisheries protection.

As I have highlighted, the control and enforcement is a devolved matter, and it will continue to be for each devolved Administration to decide how best to control its waters and what new arrangements may be needed in future. In that context, I should say that Defra, the Scottish Government, the Welsh Government and the Northern Ireland Executive will continue to work together to share information and ensure a co-ordinated approach to monitoring, compliance and enforcement across UK waters. That will be undertaken.

I have perhaps gone into more detail on some of the abilities for all parts of the United Kingdom to contribute to this process, so I hope noble Lords will forgive me for that detail. I hope with that explanation—

[Baroness Jones of Whitchurch]

There were other questions posed by the noble Lord, Lord Teverson, to which I hope the Minister will respond. Going back to the Navy, the Minister talked about the MMO having a risk-based intelligence review that justified the number of vessels it was able to provide. However, it seems to me—I am sure my noble friend Lord West would reiterate this point—that there is a sense that the Navy is overstretched, and that the two or four vessels to which the Minister referred as being available do not seem a lot in the short term. I am sure that eventually things will settle down again, but in the next 18 months I can see that small skirmishes could break out because of misunderstandings in all sorts of places. People could misunderstand the new rules, for example. It only needs something to happen in the English Channel and the Irish Sea at the same time for resources to be stretched. Does the Minister think that there are sufficient resources? That is the real question, not what everyone else thinks. Does the Minister, who is ultimately responsible, feel that this is sufficient resource?

[Lord Gardiner of Kimble]

I absolutely understand the point made by the noble Baroness. My assessment is that this is at the right level, and the fact is that the Royal Navy is growing or doubling its vessels. That is why I emphasised the phrase “at least”. There is an agreement between the MMO and the Royal Navy about those two things. I emphasised “at least”; all our efforts will be to ensure that there are no difficulties at sea, which would be in no one’s interests. That is precisely why I explained about the doubling of the number of front-line warranted officers, and why I outlined increasing aerial surveillance and the work of surveillance technologies. All this is upscaling, precisely to accommodate the point made by the noble Baroness, if we are in potentially uncertain times, rather than where we were before. I described the increase in almost every feature of what is available to us at sea, including technology and personnel, to accommodate the possibilities that the noble Baroness outlined. I am basing my judgment on a much more rigorous assessment than me just saying yes to the noble Baroness. It is also why JMOCC is so important, because so much of this is intertwined with those organisations involved in JMOCC. It is terribly important that the MMO and Marine Scotland are part of that because there may be a time when fisheries protection becomes an issue and all this resource across the United Kingdom and the Royal Navy may need to be deployed.

I will say that the answer is yes, but it is not a glib yes. It is because the people who understand these areas have assessed and advised us that we should increase what we have done. That is why I am confident that we are where we should be. However, I emphasise to the noble Lord, Lord Teverson, that it is really important that all these matters are kept under review. That is why I deliberately emphasised that, on this matter, there is strong working with all four fisheries administrations in the United Kingdom interest.

[Lord Teverson]

How long will the temporary financing of extra resources last and when it will end? At that point, there will be a question mark. Will we go back to where we were when, effectively, for many years there was no real access to the Royal Navy at all because it was off doing other things? This is a really important point to clarify.

[Lord Gardiner of Kimble]

I apologise to the noble Lord and the noble Baroness that I have no further detail other than to say that I am confident. We have upscaled in the way that we have—constructing vessels and all we are doing is not like turning on and off a tap—and are increasing the number of Royal Navy vessels for this sort of demand. If we were to need additional support because something happened, I am confident that all the resources would be at our disposal.

I do not think we need to discuss a theoretical point, but if in 10, five or three years’ time all is well and we have good negotiations and agreements, the most important thing—the responsibility that all Governments should have—is the safety of UK interests and the safety of people at sea. Obviously, we will need to have all that I have outlined with the assessment that the MMO is constantly reviewing. I imagine that, down the line, there may be an assessment that there is not much of an issue and we are working towards having that capability, but that would be for the future. For now and for the foreseeable future, however, it is precisely why the Navy is upscaling the number of vessels and why we have done what we have by increasing the number on the front line.

I have been handed a note that says that all matters for future enforcement funding will be the subject of the spending review, but we will put in a robust bid, as befits our status as an independent coastal state. I hope I have not offended the Treasury by saying that.

I apologise. I should have addressed that, but in the meantime, I hope I have outlined to the noble Baroness that this is obviously an area of continuing interest and continuing responsibility.

[Lord Teverson]

Perhaps the Minister can write to me with the figures for the current enforcement budget for England and the amount of Brexit special funding from the Treasury. They are discrete amounts and I would be interested to know what they are.

[Lord Gardiner of Kimble]

Yes, I will endeavour to ensure that a letter is directed to the noble Lord and the noble Baroness and put in the Library.

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[Lord Teverson]

My Lords, I am very pleased to support the amendment. If there has been one mistake made since the referendum—apart from the result of the referendum which, of course, is indisputable and I entirely accept—it is that the Government have attempted to exclude Parliament from so much. That has been part of the reason why we have had the three years of turmoil that we have had. It is therefore important that the Government keep Parliament involved or up to date on how these negotiations are working; though clearly Parliament is not looking for the final resolution, those negotiations have to take place in that context.

Last week, I was concerned that when the Secretary of State was in front of the EU sub-committee, he stated that the Scottish Administration—or a Scottish Minister—would not be allowed in the room when the negotiations took place. He was very specific about it: I questioned him and checked what he had said. He said it was because this was not a devolved matter but a matter for the United Kingdom. It was slightly ironic, given the discussions we have had on this Bill. Will the Government reconsider that position, because the Scottish fishing industry is fundamental to the UK fishing industry? This is an area on which the Government ought to change their view. I very much support the amendment and the spirit in which it was introduced.

[Lord Gardiner of Kimble]

My Lords, I am also grateful to the noble Baroness for her amendment. The UK Government remain committed to keeping Parliament and the public informed of the progress of negotiations. On 27 February, the Government published The Future Relationship with the EU: The UK’s Approach to Negotiations. This makes clear that the UK and the EU have committed to use best endeavours to agree a new fisheries agreement by 1 July 2020. In line with the practice of other independent coastal states, the agreement would provide a framework for annual negotiations on access and quota and set out a mechanism for co-operation on fisheries matters where we share an interest with the EU. The Prime Minister has already committed to providing further details as the negotiating process develops. Both Houses will also have access to their usual arrangements for scrutinising the actions of the Government—and I am in no doubt, looking at various noble Lords here tonight, that your Lordships will take full advantage of these.

As your Lordships will be aware, negotiations for a fisheries framework agreement and our future relationship with the EU started last week. It is important to note that, as the Chancellor of the Duchy of Lancaster noted in the other place, the UK Government hope that by June, the broad outline of an agreement will be clear and capable of being rapidly finalised by September. Subsection (1)(b) in the amendment itself refers to distant waters. It is not clear whether “distant waters” was intended to have a specific meaning, but we have taken it to mean waters for which the UK is not the relevant coastal state and which are outside EU waters. Therefore, I make it clear that we will also seek to negotiate fisheries framework agreements with key partners in other coastal states, such as Norway. Again, these agreements will pave the way for annual negotiations on access and fishing opportunities in third-country waters, which I know will be of particular interest to our distant-waters fleet and others whose businesses rely on accessing fishing opportunities in those waters.

As with negotiations with the EU, the Government will keep Parliament informed of the progress of these negotiations. Where we have fisheries or conservation interests in international waters, the UK will join relevant regional fisheries management organisations in its own right and, in so doing, we will continue to collaborate with other coastal states where we have shared interests in fisheries in international waters.

In all these negotiations, leaving the EU creates an opportunity for the UK to secure a fairer sharer of quota, or fishing opportunities, for our own fleets. I assure noble Lords that that is what this Government are determined to achieve but, with all these negotiations, the UK Government must retain flexibility—we may not agree but I think the noble Lord, Lord Teverson, was going along those lines—with regard to the timing and content of our updates to Parliament, in order not to undermine our positions in live and ongoing negotiations. We believe that the amendment would remove this flexibility, obliging the Government to publish a statement at a particular time, potentially while negotiations are still ongoing. This risks undermining our negotiating positions entirely.

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[Baroness Jones of Whitchurch]

I think I am going to ask one of my dumb questions, which I know the Minister will tolerate. I am trying to understand the process here, because 1 July is quite soon for the negotiations to be complete. The Minister said that both Houses will be able to scrutinise. Scrutiny quite often happens after the event. How will Parliament be kept informed of those negotiations before the ink is on the paper and everything is a signed and sealed deal? Which bits of the two Houses will see this before it is signed? We had a skirmish about this with the overall withdrawal agreement and it would be good not to have to repeat that anguish for something as specific as this. Can he reassure me that we will see those details and be allowed to comment on them before it is all signed off?

[Lord Gardiner of Kimble]

I think it would be best if I just repeat that the Prime Minister has already committed to provide further details as the negotiating process develops. I have said those words at the Dispatch Box twice now, and that both Houses will have access for scrutinising the actions. I well understand the point the noble Baroness is making. Obviously the Government have responsibilities for negotiations, but the Prime Minister has already committed to provide further details as the negotiating process develops. I do not think anyone could interpret that as being at the end, when everything has been said and done.

[Baroness Jones of Whitchurch]

In that case, I am grateful to the noble Lord and I think it would be helpful if he could just check the point that the noble Lord, Lord Teverson, raised—I know he said he would—about what was said at his committee last week. I will look at Hansard carefully but, in the meantime, I beg leave to withdraw the amendment.

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I am happy to lend my support to this part of the debate, and I am sure we will come on to it now in subsequent groups, as we get into the nitty-gritty.

[Lord Gardiner of Kimble]

My Lords, I am grateful to the noble Lord, Lord Grantchester, for his amendment, and to the noble Baroness who moved it. Although I recognise that the aim of the amendment is to make it compulsory for the Secretary of State to determine annual fishing opportunities, it would oblige the Secretary of State to determine all fishing opportunities on an annual basis. Some stocks are determined on different timescales, and for some non-quota species, there is no specific determination. I assure noble Lords that the original provisions are sufficient to ensure that the Secretary of State fulfils the function of determining UK fishing opportunities, through Clause 23(1) and (2), and that Parliament is able to scrutinise these determinations through Clause 24(2)(b).

Further, for non-quota stocks—for which we do not currently have the science to make an accurate determination—the fisheries management plans, as outlined in the joint fisheries statement, will set out policies for getting stocks to their maximum sustainable yield. For such stocks, this will necessarily include our plans for improving the scientific data and evidence that will underpin the future management of our non- quota fisheries. I say to the noble Lord, Lord Teverson, that this is why he should be more positive about the fisheries management plans, bearing in mind the point that the noble Baroness, Lady Young of Old Scone, made earlier. I think this is an opportunity, particularly where the science is not the strongest, and we need to improve it—this is where we can get down to some of the pragmatic ways in which we can improve all stocks.

[Lord Teverson]

I am sure that there is the potential to do that, and I look forward to the meeting; I am very pleased that the Minister is going to bring this meeting together, and maybe we will find a way forward from there. I do not in any way write them off, but when they are purely UK territorial waters, that is where I have a problem. So I endorse the Minister’s comment.

[Lord Gardiner of Kimble]

There was, shall we say, licence on my part there because I thought it might excite intervention. Anyway, I look forward very much to the discussions. Anyone who wishes to come is welcome; I will send a wide invitation and get scientists there so that we can get to the heart of some of these matters.

On Amendment 92A, the power set out in the clause would be used to set the UK’s total allowable catch, or the absolute amount the UK is able to fish, reflecting the outcome of the negotiations with the EU and other coastal states. It could also be used to ensure our compliance with Article 61 of the United Nations Convention on the Law of the Sea, or UNCLOS, which provides that catch levels should be set at sustainable levels, taking into account the best scientific evidence available. As an independent coastal state, we are committed to working closely with our partners to manage shared stocks sustainably and to share fishing opportunities on a fair and scientific basis.

It is imperative that we meet our international obligations, such as those I have described under UNCLOS, as we strive to set a gold standard for sustainable fishing around the world. I say to my noble friend that sustainability, as set out in the objectives of the Bill, is a key driver for our future plans for the industry and our negotiations. We have been clear that, in entering into negotiations and making determinations, we will be informed by independent scientific advice from ICES, the International Council for the Exploration of the Sea, CEFAS, the Centre for Environment, Fisheries and Aquaculture Science, and its equivalents in the devolved Administrations. In conjunction with our commitments through the scientific evidence objective, this provides the assurance that determinations will be fully informed by the best available science.

The existing clause also ensures that we respect the devolution settlements. The Secretary of State will make determinations on UK fisheries opportunities only where this relates to an internationally negotiated outcome, which is a reserved competence. Removing this subsection would give the Secretary of State powers to set fishing opportunities directly for each devolved Administration, which would contravene the devolution settlements. This clause provides the necessary reassurance to the devolved Administrations that the Secretary of State would not seek to overstep on areas of devolved competence.

Our fisheries White Paper made it clear that for existing quota we will honour the allocation and distribution through the FQA units. However, we have been clear that we will explore alternative methods for allocating and distributing any additional quota negotiated both at UK level and within England.

[Baroness Worthington]

To be absolutely clear, does the Minister mean that we will honour the allocation of the FQAs in perpetuity or for a transitional phase? If so, how long will that transition be?

[Lord Gardiner of Kimble]

My Lords, I will write to the noble Baroness on that. The reason for taking this decision at this time is to provide certainty on the current allocations. The point about potential changes concerns any additional quota; I will write if I have any further information on anything suggested to the contrary, but our intention is that the existing distribution will remain. We will explore alternative methods, one of which is to ensure that there is benefit to coastal communities from our additional quota. I do not think I am in a position to give further clarification unless I get some information shortly, but I will make sure that point is covered if I have any further detail. That is precisely the position; to have continuing certainty at this time of change for the existing quota.

In addressing Amendments 96 and 97 together, I am glad to confirm that the Secretary of State would of course consult the devolved Administrations and the MMO before making regulations under Clause 23(8), which would be subject to parliamentary scrutiny. I will provide further reassurance that these regulations would also be subject to public consultation. This power relates to a highly technical matter: how to calculate a “day at sea”. It could be used, for example, to determine when a boat is deemed to have left or returned to port, entered the UK’s inshore waters or, by stowing its fishing gear, not to be fishing. Consultation with the devolved Administrations on this power will be set out in a memorandum of understanding.

Further, I would like to provide reassurance that the UK Government have carefully considered the delegated powers in the Bill and the procedures that would apply to regulations. The regulations may also refer to provisions made under separate powers to regulate days at sea arrangements under paragraph 1(3) of Schedule 3 to the Bill, which are licence conditions and therefore not subject to parliamentary procedure. The Government consider that we have struck the right balance between the need for parliamentary scrutiny and the need to be able to react quickly to make what are often technical amendments by secondary legislation.

I am sure your Lordships will be aware that the Delegated Powers and Regulatory Reform Committee of this House considered the proposals for all the delegated powers in the previous Bill when it was progressing through its stages in the other place. The committee said:

“Of the Bill’s 15 delegated powers that have a parliamentary procedure, only four are solely governed by the negative procedure, and justifiably so.”


The committee published a new report on 26 February on this Fisheries Bill and did not change its views on the procedures we have adopted.

I recognise the intention behind Amendments 100 and 101 but will explain why this is already covered. Clause 24 sets out the duties that will apply to the Secretary of State when determining UK fishing opportunities. It does not relate to the subsequent allocation of those opportunities to the fisheries administrations or to their distribution to the fishing industry. This clause aims to ensure that, as far as possible, the interests of the whole of the United Kingdom are taken into account when the UK’s fishing opportunities are set.

In England, Defra and the Marine Management Organisation already regularly engage fishers and industry representatives on fishing opportunities through a number of different routes. This engagement covers both the determination of fishing opportunities and their subsequent management over the fishing season. It is also unclear how these amendments would improve current engagement. Consulting such a wide and undefined group is likely to cause delays in publishing UK fishing opportunities and could complicate the process of negotiating and implementing the UK’s international obligations.

Turning to Amendment 102, as I made clear, to ensure that we are fishing sustainably and meeting our international requirements, it is important that we are able to determine the UK’s fishing opportunities. Clause 23(2) allows determinations to be made for the purpose of complying with an international obligation. To reiterate, to respect the devolution settlements, the determination can relate only to the high-level function of setting the UK’s overall pot of quota, in line with any internationally negotiated outcome or the UK’s overarching obligations under international law.

Clause 24 requires the Secretary of State to consult the devolved Administrations and the Marine Management Organisation before making or withdrawing a determination. This is to ensure that the interests of the whole of the UK are taken into account when the UK sets its fishing opportunities. The Secretary of State is required to publish any determination or withdrawal and lay it before this House. At that point, the UK Government will need to explain the reason for the withdrawal and new determinations.

Finally, while I support fully the aim of Amendment 103 to ensure that fishing opportunities are determined in accordance with the best scientific advice available, I believe this amendment is covered. The Government’s commitment to using the best available scientific advice to guide our negotiating position and, by extension, determination of fishing opportunities is already given force in the Bill through the scientific evidence objective in Clause 1. I have been clear that in our negotiations with other coastal states and in responding to other international obligations, we will be informed by independent scientific advice such as that from ICES and CEFAS. I think the noble Baroness, Lady Worthington, referred to the importance of that.

The UK’s approach to making any such determination —including the position it will adopt when negotiating with other coastal states on fisheries management decisions of shared interest—will also, necessarily, take into consideration socioeconomic analysis as well as the views of the devolved Administrations, industry, environmental NGOs and other stakeholders. Further factors to be taken into consideration will include aspects such as gear types, choke risks and the dynamics of the fishing fleet.

UK negotiators must be able to take a flexible approach in negotiations and that includes considering the best available scientific advice alongside the range of other factors I have just mentioned. But as I said, the Government’s commitment to using the best available scientific advice is already clear.

[Baroness Worthington]

I am grateful for the Minister’s response. I would just like to clarify that my amendment did not say that we should seek scientific advice, but that no allocation should run counter to that advice to enforce the basic point that if we carry on allocating over what is scientifically advised, we will all be diminished. We will have fewer fish stocks, less profitable fisheries and a more degraded environment. I still do not think that the point has been accepted that we cannot continue to allocate over scientific advice and still have a flourishing industry.

[Lord Gardiner of Kimble]

I take the noble Baroness’s point. It is why, in rerunning the objectives debate on Clause 1, the whole range of those objectives is absolutely entrenching our desire for sustainability and the environmental sustainability that I know the noble Baroness and all noble Lords desire.

As I have said, and I can only reiterate, we will be—

[Baroness McIntosh of Pickering]

Is my understanding correct? Did my noble friend say that Clause 23(2) could be used to allocate the unused quota to under-10-metre boats, rather than just being for international obligations?

[Lord Gardiner of Kimble]

I had better look at the Bill again, and check exactly what I said so that I do not, in any way, say anything to the contrary. Certainly, the mechanism for new quotas and how we best benefit coastal communities is an area we are looking at with considerable interest. Clause 23(2) allows:

“A determination under subsection (1) may be made only for the purpose of complying with an international obligation.”


The determination can relate only to the high-level function of setting the UK’s overall pot in line with any international negotiated outcome, or the UK’s overarching obligations under international law. This might be even more of a clincher. On my noble friend’s point, I will look at Hansard, because I did not intend to make that inference and I do not think I did. For the record, Clause 23 is for the determination of only the UK pot of quota. It does not provide for allocating to industry at fisheries administration level.

To conclude, I absolutely take the point of the noble Baroness, Lady Worthington: the best available scientific evidence is absolutely clear. We all want the same thing. With that explanation, I hope the noble Baroness will feel able to withdraw her amendment.

[Baroness Jones of Whitchurch]

My Lords, the Minister has given a lot of detail, so I feel that I too will have to go back and read through Hansard. I am trying to clarify our very simple first amendment, the one that would put “must” rather than “may” in Clause 23(1). At the moment, it reads:

“The Secretary of State may determine, for a calendar year—


The maximum quantity of sea fish that may be caught by British fishing boats;


The maximum number of days that British fishing boasts may spend at seas.”


Our amendment said:

“The Secretary of State must”.


If it is okay in some calendar years for the Secretary of State to determine that, I am not quite clear why it is not okay every year, which is what our amendment would have achieved. In which years is it all right to do it, and in which years is it not? This is where I am lost, because if the principle is accepted—which it clearly is because it is spelled out there—why not do it every year?

[Lord Gardiner of Kimble]

Again, the problem with the amendment stating “must” is that it concerns the determination of all fishing opportunities. If it says “must”, the amendment becomes a requirement that would involve stocks determined on different timescales. There are also some non-quota species where there is no specific determination. The word “may” allows the determination of the annual fishing opportunities. The problem with the amendment making it “must” is that it brings in these non-quota species. The issue I have sought to put across is that making the determination compulsory embraces all stocks—because it “must”. Obviously, there will be annual fishing opportunities for all those that involve quotas and so forth, and we will be having annual negotiations and arrangements. It is not that the Secretary of State will suddenly say, “I don’t think we’ll do this, this year”; it is that making it “must” brings in these stocks determined on a different timescale and non-quota species. That is the problem as I understand it: the amendment has that legal interpretation.

The original provisions ensure that the Secretary of State fulfils the function of determining UK fishing opportunities through Clause 23(1). Making it a “must” brings into scope stocks that would not be subject to the determination of annual fishing opportunities. That is as I understand it. If it is any different, perhaps I can discuss with the noble Baroness, but that is, in our view, the problem with the interpretation of that amendment.

[Lord Teverson]

I strongly support this amendment and, if that is the case, clearly the Government should just bring forth an amendment themselves. It should say that for quota species it should be a “must”. That is how we solve it. Clearly there must be that assessment or process every year for quota species. It is obvious and clear. The Government need to bring forward their own amendment to make sure that it includes only quota species.

[Lord Gardiner of Kimble]

Again, the provision talks about “for a calendar year”, so these are annual fishing opportunities. “Annual” means every year; it does not mean that by saying “may”, the Secretary of State can decide not to bother one year. That is not the case—rather, it is about the fixing of annual fishing opportunities.

As I say, I have been informed that the original provisions are sufficient to ensure that the Secretary of State fulfils the functions of determining UK fishing opportunities, but if I have anything further that will assist noble Lords, I will of course communicate it. I think that the interpretation of this power to determine serves the correct purpose, but if there is a pressing need to have discussions with noble Lords on the matter outside the Committee, I am happy to do so. However, as I say, I have been advised that there is no problem with it.

[Baroness Jones of Whitchurch]

I feel that the more we dig, the more complicated and confusing this gets. I understand that the noble Lord has to read out the brief he has been given, but I share the concern of the noble Lord, Lord Teverson, that if it is not here, where is the wording to say that there will be an annual determination of the fishing stock? It may be that it is somewhere else in the Bill and I have missed it, but if it is not, it should be here. The noble Lord, Lord Teverson, has made a helpful suggestion about how the Government could address that point. I am still not clear on what the Minister said about what would apply and what would not, but the overarching point to make is that it needs to say in the Bill that there is a total number of fish stocks; that needs to be spelled out somewhere.

I think that I am reassured by what the Minister has said about consultation, but again it is one of those things which is covered in a number of different places in the Bill. We need to make sure that everything lines up so that the reassurance he has given means that this is covered elsewhere Bill, as well as by the comments he has made today.

I note what he said about the Delegated Powers Committee report, which has reminded me that I should take another look at it, but on the basis of what he said, I am sure that the committee has not raised any issues, so I will not pursue that.

I turn finally to the point about the scientific advice which was raised by the noble Baroness, Lady Worthington. I think that we have a running theme of agreeing to disagree on this. Once again, we hear what the Minister has to say but we do not feel that the wording is good enough, so we may bring this back in some form on Report. There is a general view around the Committee that we need to pin down the significance of the scientific advice and make sure that it is heeded on all occasions. That is what the noble Baroness is trying to do.

That is enough for now and I beg leave to withdraw the amendment.

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[Lord Grantchester]

My Lords, I am grateful to the noble Lord, Lord Teverson, and the noble Baroness, Lady Bakewell, for tabling Amendment 93, which allows us to return to two previously debated topics: international co-operation and the need to ensure fishing at sustainable levels.

The noble Lord, Lord Teverson, has previously spoken cogently about shared stocks and the interdependency of sustainability across nation states. The Committee has had several assurances from the Minister on both these topics yet concerns remain. Despite many challenges, especially in relation to the UK and the devolved Administrations’ activities, NGOs and stakeholders remain concerned that the legislation before the Committee does not truly give effect to the Conservative Party’s manifesto commitment to introduce a legal commitment to fish sustainably.

There are negotiations on trade yet to come, where there could be little transparency regarding sustainable outcomes without a commitment to produce annual reports. Instead, we see a commitment subject to caveats of fishing sustainably when circumstances allow and when the UK can strike relevant agreements at international level.

I will not repeat instances from previous Committee debates, but careful consideration must be given to how this framework can add value to the ponderous steps in that direction in the CFP, and brought back on Report. Movement in these areas would give us a level of reassurance that we are heading in the right direction.

However, as it stands, and as Greener UK points out, the objectives on biomass do not go far enough, and in any event are not fully binding. The Bill does not include legal commitments on international co-operation, with the Government falling back on their participation in existing international agreements, even though these are limited in scope.

The Committee can acknowledge that there are areas where the UK will want to diverge from the common fisheries policy. We have all been critical of the CFP for failing to achieve its targets in relation to MSY. Here, I admit to being in the kindergarten stage, having not even reached undergraduate. The fact is that these targets are recognised at international level and the Committee will need to consider how pressure can be brought in this aspect.

If we do not improve the Bill, the UK could be left with a regression in environmental standards resulting from the CFP. We will be left in a situation where the Government say they want to go further than the EU has allowed us to, but where there is no statutory duty to match what came before. This is why those NGOs, and certainly those on these Benches, are so concerned. We cannot let sustainability be left to non-binding policy statements, which can, in a number of cases, be overwritten or overridden. This is no basis for a fully independent fisheries regime; nor will it give the UK any cast-iron basis on which to negotiate with international partners.

The Minister may resist this amendment, but I ask that in the meetings which he has assured the Committee can be undertaken before Report, we might bring forward further improvements that the Government may be willing to sign up to.

[Lord Gardiner of Kimble]

My Lords, I am grateful to the noble Baroness for her Amendment 93, which sets out a number of requirements relating to the determination of fishing opportunities by the Secretary of State and fisheries authorities.

Starting with subsection (2A), it is important to be clear that the UK is already required to comply with its international obligations, including those under UNCLOS to co-operate with other coastal states to manage shared stocks sustainably. When it comes to shared stocks, noble Lords can be assured that we will be engaging with the coastal states with which we share those stocks. Furthermore, when carrying out his functions relating to the determination of the UK’s fishing opportunities, the Secretary of State will also be bound by the policies set out in the joint fisheries statement and any Secretary of State fisheries statements, as well as by the fisheries management plans. Repeating these requirements in the way proposed by this amendment is not necessary.

Proposed subsection (2A)(b) seeks to ensure that fishing opportunities for shared stocks resulting from negotiations with coastal states are set on the basis of the maximum sustainable yield for those stocks. The UK remains committed to the principle of the maximum sustainable yield. However, our negotiating partners might not always attach the same degree of priority to realising this goal. In those circumstances, the UK must be able to take this into account and negotiate accordingly or risk parties walking away altogether, with potentially worse outcomes for the sustainability of those stocks.

The noble Baroness is right to raise the challenge of fisheries management with limited scientific evidence. Shared understanding between nations becomes imperative in these situations. That is why the UK is so committed to continued engagement through ICES as well as global objectives such as the UN’s relevant sustainable development goal.

Although we will seek to influence and engage responsibly, it is not appropriate for the United Kingdom to seek to solve problems which may be caused by other countries. Subsections (2C) and (2D) of the amendment would introduce duties requiring the United Kingdom to act unilaterally to set fishing opportunities consistent with MSY, irrespective of the behaviour of other coastal states. This could lead to a number of unacceptable outcomes, such as disadvantaging the United Kingdom in negotiations by imposing stricter responsibilities to achieve MSY than those applying to other coastal states; and, more seriously, risking the creation of a perverse incentive for other coastal states when negotiating with the UK to either set higher TACs, or unilaterally claim larger shares, in the knowledge that under our own legislation we would be legally bound to reduce our own quotas as a consequence.

These possible consequences would not be in the interests of fish stocks, our broader marine ecosystems or, indeed, our fishing communities. I must reiterate that creating an inflexible situation for UK negotiators could result in the United Kingdom having to walk away from negotiations altogether, with unilateral quota-setting as a consequence. Experience has shown that unilateral quota-setting in the absence of an agreement between countries is a recipe for overfishing—something we all wish not to happen.

--- Later in debate ---

[Lord Teverson]

My Lords, I congratulate the noble Baroness on her work on the lobster hatchery in Cornwall, which really is something quite special and has been very successful.

[Lord Gardiner of Kimble]

My Lords, I too thank my noble friend Lady Wilcox very much for her distinguished support for fishing interests over many years.

Amendment 107 in particular would seek to reserve a proportion of English quota to be sold solely to the under-10-metre fleet. In England, the decision about whether to tender any quota is still being considered. I would say to all noble Lords who have contributed to this debate that all these matters are under active consideration. I will want to take back a large number of the points that have been made, but the criteria to be applied to any auction or tender could address concerns raised in relation to the under-10-metre fleet. Measures could be introduced to limit the lots being tendered, the amount of time they are tendered for, and the groups that they are targeted towards. As I have said, the Government will consult on the scheme and any allocation criteria. Other countries, such as Iceland and the Faroes, have explored auction systems for selling national fishing quotas. We will, therefore, also look to learn from these and other countries’ experiences. The Bill provides flexibility about how any future scheme might operate. It would already allow a scheme to be made only for the under-10s, for instance.

I turn to Amendments 108 and 109. The Government are committed to using the additional quota we secure to benefit our fishing industry and the coastal communities that they support. I know that the noble Baroness and many noble Lords will be disappointed, but the Government’s intention is to use this power to auction and tender additional quota. We recognise that this is an opportunity to support different catching sectors and will be consulting in the future, but the Government are committed to the support of coastal communities. While it is our intention that that these additional fishing opportunities be sold, and fished, the clause does not currently prevent someone from buying it and not fishing against it, as Amendment 108 seeks to provide. That said, I would caution that stopping this additional quota from being fished could reduce the benefit for our coastal communities. Encouraging those who do not intend to fish the quota to compete in auctions could also increase prices, and potentially outprice our fishers.

To address Amendment 109 specifically, I highlight that the quota tendered or auctioned through this clause would be only a proportion of total UK quota, as it relates to England only. It would therefore apply only to a proportion of fishing activity, and we must not forget that a significant proportion of our most valuable catches are actually of stocks that are not covered by quotas. Our ambition is to make the whole fleet more sustainable. We believe that this amendment, while well intentioned, is actually too narrow in focus, given that the Bill already provides a range of tools for fisheries managements to ensure that the impact of fishing on the marine environment is minimised.

Any scheme developed under Clause 27 would be developed in line with the sustainable fishing policies and practices that will be set out in the joint fisheries statement, which we have already discussed at length. However, as with everything relating to fishing, it is not as straightforward as might be imagined to determine what a sustainable fishing method is. As with all gear types, an assessment of sustainability is dependent upon how, when and where they are used. Advances in gear technology have also transformed sustainability and greatly cut unintentional bycatch. It is worth noting, for example, that, in line with a management approach the UK supported when an EU member state, Defra has already taken action to end a fishing technique that has caused concern—one that I believe the noble Lord, Lord Cameron of Dillington, referred to in an earlier group of amendments—being used by English vessels: namely, electric pulse trawling. English licences will be withdrawn at the end of the transition period to end the practice in UK waters by English and any foreign vessels we allow to fish in our waters. Decisions on a future scheme regarding the sale of English fishing opportunities are yet to be determined and will depend on further exploration and consultation. It is right that we continue to develop the details of the scheme with the relevant stakeholders, so that it is flexible.

I turn to Amendment 110. While I agree with the noble Baroness’s intention to ensure that any sale of English fishing opportunities is regulated and based upon clearly defined criteria, I am advised that this amendment would undermine the existing quota allocation system. Case law has recognised that fixed quota allocation units—FQAs, the units by which quota is allocated—are a form of property right. We have committed to maintaining the current system of FQAs in relation to current quota allocations. This has to be taken into account in any new regime for the distribution of fishing opportunities. However, it is also important to highlight again that the UK’s sovereign rights over its fisheries and the public right to fish are already recognised in law. UNCLOS recognises in Articles 2 and 56 that coastal states have sovereign rights over the resources, including fisheries, in their territorial waters and EEZ. At home in our domestic courts, as had been referred to, Mr Justice Cranston noted, in the UK Association of Fish Producer Organisations Judicial Review of 2013, that the Magna Carta recognised fish stocks were a public resource and:

“Consequently there can be no property right in fish until they are caught.”


Additionally, the amendment links quota allocation and the provision of fishing licences in a manner which could inadvertently lead to confusion. While quota is indeed allocated to licence holders, these two concepts are separate issues and should be treated as such. This distinction is important as it allows, for example, quota to be exchanged between licence holders during the fishing year. Such flexibility helps fishers adapt to weather patterns, choke risks and other circumstances.

I absolutely understand the reason for the amendment, particularly given that the noble Baroness and whoever may be working with her have tabled this new clause. But the Government’s position is that there is more work to do on this. We want to consult on it; we want to get it right. All the points that have been raised, not only in the noble Baroness’s amendment but elsewhere, are on work that we wish to continue. That is why I am not in a position to confirm support for these amendments, but the work is continuing. I have found the points that have been made very helpful—

[Baroness Worthington]

I thank the Minister for those comments. Could we have one of those meetings with the specialists in the room? I am merely a voice that is carrying a view from the sector itself. I would certainly appreciate that. In particular, could the Minister confirm that we can have a meeting on this point about the public rights and the allocation?

[Lord Gardiner of Kimble]

Most definitely. On the basis of my explanation, I hope that the noble Baroness will feel able to withdraw her amendment.

[Lord Teverson]

I just seek a couple of clarifications. With any new fishing opportunities, there will have to be an auction that people have to pay for, but with existing quota they will not. That gives a competitive commercial advantage, completely, to those who are already incumbents of the industry. I would think that the Competition and Markets Authority would be severely challenged by that. That is a real problem. If they are auctioned, do they then become permanent FQAs for those people, or is it a right for only five years? I was also very interested in the Minister’s comments that the rights over the fish stocks come from UNCLOS, which is an international agreement. That suggests to me that this is not a devolved issue. It is clearly a national issue, not a devolved one.

[Lord Gardiner of Kimble]

Clause 27 is about English fishing opportunities as far as I recall. The other thing I should say is that I have been very clear that the Government’s intention is to use this power to auction and tender additional quota. I have also said that the Government will consult on and consider this matter, so in matters of detail, I shall certainly not pre-empt any consideration by confirming or otherwise what the noble Lord has asked. This is obviously a matter that we wish to work further on and explore. I do not propose to take any more observations, but I will say to the noble Baroness that I am very happy for her and any other noble Lords—if they would let me know—to come and have a think piece on Clause 27.