Fishing Boats (Electronic Transmission of Fishing Activities Data) (England) Scheme 2010

Lord Scott of Foscote Excerpts

Monday 19th July 2010 Lords Chamber

[Baroness Quin]

My Lords, the Opposition welcome the opportunity to debate this statutory instrument and, indeed, welcome the measure itself, not least because the work on its principles was undertaken by the previous Government after meetings and consultations with the fishing industry. We feel that the benefits of this legislation outweigh any disadvantages.

Paragraph 7.2 of the Explanatory Memorandum attached to the instrument sums up the benefits when it describes the purpose of the scheme, using words similar to those used by the Minister, which is to ensure,

“more timely and accurate information on fishing vessel activity and enable Fishing Administrations to better manage the uptake of quotas and restrictions on fishing activities”.

That,

“in turn will contribute positively to the conservation and sustainable exploitation of fish stocks”.

There are other positive aspects to the measure, such as the reduction of the administrative burden and consequent considerable time savings, which again are detailed in the Explanatory Memorandum and the useful impact assessment.

However, while generally supporting the measure, I none the less want to put some questions to the Minister, particularly in the light of what he described, rightly, as the time pressures on us and other European states in complying with these regulations, as well as some of the difficulties connected with IT development with which we are familiar. The Minister said that two suppliers have now been identified, which means that there are two suppliers on the list that the Government have to draw up. How happy is he about the situation, given that obviously the greater the choice, the more likely it is that costs will be more competitive, particularly for the fishing industry? Can he assure us that all possible methods have been used to try to communicate with the industry and those affected by the scheme as much information as they need, so that, even with a limited choice, they will be able to make informed decisions?

In this age of devolution, the people affected will want to be assured that there is no discriminatory treatment for fishing vessels in the different UK administrations. I wonder whether the Minister can assure us of that in his reply. Certainly, the Explanatory Memorandum says that the aim is to ensure that,

“small English businesses are not placed at a competitive disadvantage compared with their UK and EU counterparts”.

Any detail on that would be welcome. Furthermore, paragraph 9(2) of the scheme stipulates that the Secretary of State must,

“reject an application if of the opinion that the port of administration of the fishing boat has been changed to England for the primary purpose of ensuring that the fishing boat is an eligible English fishing boat for the purposes of the Scheme”.

Does the Minister think that there is a risk of shopping around in that way, or is that simply an additional safeguard in the legislation?

Obviously, we are all committed to the sustainable exploitation of fish stocks. I wonder therefore whether in response the Minister could say a few words about how the scheme fits in with, and perhaps complements, other initiatives on which it would be good to be updated, such as the use of onboard catch monitoring.

We know that the Marine Management Organisation will be administering the scheme and that it is expected that that can be done within existing resources. The Opposition are committed to the work of the MMO and we would be grateful for any information that the Minister can give today about the future budget of that organisation. We would like to feel assured that it will be able to continue its valuable work, which affects all those involved in the fishing industry and the overall health of our marine environment. My right honourable and honourable friends in another place, Hilary Benn and Huw Irranca-Davies, are concerned about this.

A number of other points could be raised, but, given that the scheme will be reviewed and its effect considered over the next three years, perhaps I may write to the Minister about them as part of the ongoing review process. That would be helpful. In conclusion, I reiterate our general support for the scheme and its provisions.

[Lord Scott of Foscote]

My Lords, this statutory instrument was considered by the Merits of Statutory Instruments Committee, of which I am a member, on Tuesday 6 July. There are two respects in which the committee reached the opinion, which I share, that the statutory instrument’s drafting is profoundly unsatisfactory. Both those respects were drawn to the attention of Defra, whose written response was considered by the Select Committee the following week. The response in no way relieved the unsatisfactory respects of the original statutory instrument, so the committee decided that the chairman should write to the Minister, drawing his attention to them in the hope that he would withdraw the statutory instrument, make appropriate amendments, or cause appropriate amendments to be made, and then resubmit it. Unfortunately, the Select Committee meeting at which that was decided was on the Tuesday, and on the Wednesday or the Thursday—it does not matter which—the statutory instrument was put on the agenda for the business of the House today. Therefore I do not know what the Minister’s reaction is to the letter, or whether he has seen it. Perhaps he can clarify that.

Perhaps I may draw attention to the two respects in which the committee thought that the statutory instrument was not satisfactory. The first arises out of paragraph 6. The instrument provides for applications for grants to be made by the owners of qualifying fishing vessels to help them in meeting the costs of the software that has to be installed in order to comply with the three or four regulations that have emanated from the EU. However, paragraph 6 provides:

“The amount of the grant—

(a) must not exceed the cost of the purchase or supply of the approved software”—

that is fine, and—

“(b) may be such lesser amount as is determined by the Secretary of State”.

Read as it stands, that would give the Secretary of State the arbitrary right to reduce to a negligible amount the grant which was to be paid.

The Minister, in introducing the instrument, said that £2,000 per vessel would be the limit of the grant that would be approved. Somewhere else I saw a suggestion that £1,500 to £2,000 would be a reasonable amount. This point was drawn to the attention of Defra, which responded by stating that Defra Ministers had made a commitment to fund the reasonable costs of software. That is fine and is entirely consistent with what the noble Lord said. However, there is no word of that in the statutory instrument. The figure of £2,000, £1,500 or any other figure does not appear there. All that the statutory instrument states is that:

“The amount of the grant … may be such lesser amount as is determined by the Secretary of State”.

It is profoundly unsatisfactory to have a statutory instrument that does not spell out what are the conditions on which the grant is to be allowed. This statutory instrument does not. How easy it would have been for it to be amended so as to specify the figure of £2,000 to which the Minister referred and include it in the criteria governing the payment to be made by the Government.

One of the essential characteristics put forward about this House is that of revising legislation. Revision of legislation is generally understood as referring to primary legislation, but it is surely just as important in relation to secondary legislation such as this. The ability of the House to exercise a revising role in relation to secondary legislation depends on the points made by such committees as the Merits of Statutory Instruments Committee being taken into account, the Minister having an opportunity to make such amendments as are thought appropriate, having regard to the comments from the Merits Committee. That has not been done in the present case. That is a pity. If this House is to be held up as providing the valuable role of revision of legislation, that must surely apply to secondary as well as to primary legislation. Here, it seems not to have done so.

The second point arises from paragraph (10) of the statutory instrument. It states:

“The Secretary of State may revoke the approval of an application, or withhold payment of a grant, or of any part of the grant, if it appears that”—

note, “if it appears that”—

“(a) any condition of payment of the grant, or of any part of it, has been breached or has not been complied with; or

(b) the applicant has committed or may have committed an offence under section 17 of the Fisheries Act 1981”.

The concept of it appearing that the applicant may have committed an offence is such an unusual one as to make one wonder what provision there is for an appeal. The problems about that were drawn to the attention of Defra by the Merits Committee. The department's response was that,

“the power to revoke or to require repayment of anything already paid would be exercisable if there were sufficient evidence of a breach of a condition or of an offence”.

The reply refers to “sufficient evidence”. Where does one see the reference to sufficient evidence in the statutory instrument? Nowhere. The power to revoke and the power to demand repayment is simply left, apparently, at the discretion of the Secretary of State. That is profoundly unsatisfactory. That, too, would be capable of easy amendment. It is not the Minister's opinion that will be important; it is the objective facts. To hinge the revocation of a right to receive a particular payment on the proposition that it appears to the Minister, to the Secretary of State, that an offence may have been committed cannot be right. That is quite contrary to the basis on which judicial review, for example, proceeds.

Some of your Lordships may—certainly the lawyers present in this Chamber will—remember the great case of Liversidge and Anderson, where Lord Atkin gave a dissenting judgement which has formed the cornerstone of judicial review in modern times. Lord Atkin's point concerned a piece of legislation which allowed internment of individuals within the jurisdiction of this country if there was reasonable ground for suspicion that they were foreigners who might become engaged in nefarious activities. The question was whether the expression “there was reasonable ground” could be interpreted to mean “if the Secretary of State thinks that there was reasonable ground”. Lord Atkin said that that could not be equated with “there was reasonable ground”. Either there was or there was not, which was a matter which could be tested in the courts. There is no provision for appeal against the arbitrary exercise of power by the Minister under paragraph (10). That, too, is a profoundly unsatisfactory element in this statutory instrument.

The purpose of the statutory instrument is entirely unexceptionable. The explanations given by the noble Lord are unexceptionable, but they are not to be found in the statutory instrument. I would not wish to divide the House on the question of whether the statutory instrument should be approved, but I would wish to have an assurance from the noble Lord as regards his explanation in relation to paragraph (6)—the power to reduce the amount that can be claimed and should be paid—and paragraph (10)—the power to revoke a previous decision and, in the extreme case, call for repayment of money already paid—that those powers will not be exercised unless in the first case the amount falls above the minimum amount which the noble Lord mentioned and in the second case unless there is sufficient evidence. Both features are essential if these statutory instruments are not to go through the hoops of litigation, which is highly expensive to the country and thoroughly undesirable as a matter of principle.

[Lord Lee of Trafford]

My Lords, the Liberal Democrat Benches support the requirement in the scheme as a means of ensuring a more efficient and accurate form of recording fishing vessel activity than the previous practice of using paper logbooks and landing declarations, thus benefiting conservation. I have a particular question for my noble friend about training. In the validation and accreditation of the software systems that meet the agreed UK specification, how much regard do the contractors have for the need of training for fishermen and other operators when using the new electronic system? Many workers will have worked within the industry for a number of years and will not be used to operating such systems, so I hope that the contractors will have in mind systems that are user-friendly and simple to understand. Will the systems that meet the UK specification be similar to those used by other member states? Given the international nature of fishing operations, it would be pleasing to know that the UK Government have thought about electronic systems that will be used by neighbouring countries. Do Her Majesty’s Government have an estimate of how long the scheme will run for? What is the appropriate appeals system should an applicant be turned down for a grant? Are new entrants into the fishing industry eligible for the scheme once this legislation has come into force? Overall, we wish the scheme well and hope to see its speedy passage into law.

--- Later in debate ---

[Lord Henley]

My Lords, I start by saying how grateful I am for the response of the noble Baroness in saying that the scheme is timely. She said that she wants to see it passed because the Government of whom she was a supporter had been keen to see it brought forward. She is right and I agree with all her earlier comments.

The noble Baroness asked a number of questions, the first of which was about the number of suppliers on the list. At the moment we have two possible suppliers. We expect to have another three or so approved shortly and others are expected to come on board later, so we hope that there will be genuine competition, which, if anything, will keep the costs down. One wants to be wary of imposing a limit and suddenly seeing everyone rather miraculously getting up to that limit, but we think that there will be genuine competition. She was right to say that we must do all that we can to communicate these matters to the industry; indeed, we have done what we can. Letters alerting vessel owners to the need to have e-logbooks on board, plus the existing funding scheme, were sent out by the Marine Management Organisation sometime this month.

The noble Baroness went on to ask whether there would be any discrimination between the devolved Administrations and this country. I can assure her that we will discuss these matters with the devolved Administrations. They have all agreed to pay the reasonable costs of the software for their industries. They are expected to have similar limits, but obviously that has to be a matter for them, as is the case for England. I understand that, going beyond the devolved Administrations, most if not all other member states are also paying for the purchase of electronic software for their shipping industries.

The noble Baroness also asked whether under paragraph 9 the Secretary of State would be prepared to reject an application if she thought that individuals were shopping around between the different devolved Administrations. I do not think that I can say anything that might fetter the discretion of the Secretary of State, but certainly she would be prepared to take that into account.

I will come to the noble and learned Lord, Lord Scott, last of all because he has asked me the hardest questions, so they are the ones that need to be addressed more closely, but I shall pick up on the point made by my noble friend Lord Lee. He asked about training for individual masters of ships on how to deal with the software. I can give him an assurance that training will come from the software provider. As with any computer software package, training on how to use it will normally be offered as part of the package that the individual has bought into. I can also assure him that the software may be similar to that adopted by other member states, so again there is the possibility of further reform.

The noble Lord, Lord Greenway, asked whether all these boats had the relevant hardware. When we are talking about boats of 15 metres and above, it is likely that they do, but obviously we will have to look at this again when we consider extending the scheme. Again, I can give an assurance to the noble Baroness, Lady Quin, that all these matters will be reviewed when we come to extending the scheme to 12-metre boats in due course.

As a lawyer, one always feels a certain degree of terror when someone such as the noble and learned Lord, Lord Scott of Foscote, points out drafting errors in an instrument, as he perceives them, and I certainly take note of what he says. On his two principal points, he suggested that there was a power and ability in paragraph 6 for the Secretary of State arbitrarily to reduce the figure from £2,000 to a negligible sum. I can assure him that we certainly have no intention of doing that. I do not know whether, spoken at the end of the debate, this assurance counts as the considered remark of a Minister under Pepper and Hart rules but, if it does, I assure him that we would certainly want to stick with the £2,000 figure.

The noble and learned Lord asked about paragraph 10 and whether the department had sufficient evidence to go ahead. I think that we do and I give him a similar assurance, which I hope will be good enough. I shall look carefully at what the noble and learned Lord has said on this matter and, if I feel that I have not said enough, I will write to him further and deal with that point in greater detail when I have discussed it with officials and colleagues in the department. As to the noble and learned Lord’s complaint that he received no reply to his letter, I can only apologise. I will make inquiries as to where things went wrong.

[Lord Scott of Foscote]

It was not a letter that I wrote; it was a letter that the chairman of the Select Committee was supposed to write.

[Lord Henley]

If it was from my noble friend Lord Goodlad—or from any Member of the House—obviously I take the matter extremely seriously. I will make inquiries about that letter and get back to the noble and learned Lord and respond in the appropriate way.

What the noble and learned Lord said about the generality of the scheme—we are all in favour of it—inclines me to say that we should go ahead and pass it now. However, if we have got some of the drafting wrong, again I can only apologise, say “Mea culpa” and state that we will not do it again—at least, I hope that we will not do it again. I see in the Chamber other former Ministers from the department who may have been in this position. We shall try not to get it wrong again and will always remember that it is a very uncomfortable position to be in when a noble and learned Lord tells us that we have got something wrong.