Fisheries Bill (Eighth sitting)

Peter Aldous Excerpts

Thursday 13th December 2018 Public Bill Committees

[Peter Aldous (Waveney) (Con)]

I beg to move amendment 23, in clause�18,�page�10,�line�36,�leave out �negative� and insert �affirmative�.

It is good to see you back in the Chair, Mr Hanson.

I will speak relatively briefly about this amendment. It is a tweak, but I sense that it is quite an important tweak. It is on an issue that was brought to my attention by Fishing for Leave and I know that the Opposition will also support it.

Clause 18 gives the Secretary of State the authority to determine fishing opportunities. It proposes that the regulations for determining the number of days that a boat can fish are to be established by negative resolution; we talked about that this morning. Given the importance of this issue�views on it are held passionately, both by those who favour a days-at-sea regime and those who oppose it�there is a strong case that the regulations should be established by affirmative resolution, so that any decisions can be taken in a transparent way, and do not just go through on the nod and under the radar, so to speak.

My concern is that I sense we could be storing up a problem for later in the day. I would welcome a bit of clarification from the Minister as to how he reached this decision and whether he might review it.

[Luke Pollard]

I rise to speak, briefly, in support of the hon. Gentleman�s amendment. When we are talking about allocating fishing opportunities, it is important that Parliament is given the opportunity to scrutinise them, especially at the start of a new fisheries period for our country, to ensure that the allocations carry the confidence of the fishing industry that they are being allocated in a robust way.

[George Eustice]

This is a similar discussion to the one we had earlier on the use of the negative resolution procedure rather than the affirmative resolution procedure.

As I said earlier, the Delegated Powers and Regulatory Reform Committee considered the Bill and said that of its 15 delegated powers that require a parliamentary procedure, only four are solely governed by the negative procedure, and justifiably so. I will explain to my hon. Friend the Member for Waveney why I think the negative procedure is justified in this particular instance.

Clause 18(1) replaces powers that are similar to those set out in section 4(6) of the Sea Fish (Conservation) Act 1967, and those are also made under the negative procedure. We followed the approach that has been taken not only while we have been in the European Union, but even before we were in the European Union, to have the negative procedure in relation to this measure.

I point out to my hon. Friend that the actual power to determine the number of days at sea is a straightforward power that the Secretary of State has without even the need for regulations, under clause 18(3), and the issue in subsection (8) is that,

�The Secretary of State may by regulations make provision for determining, for the purposes of this Act, the number of days in a calendar year that a fishing boat is to be regarded as spending at sea�.

The purpose of the regulations is to establish what happens if they do six hours. Is that half a day or part of a day? The regulations basically govern how we measure a day at sea and whether it should be, as in some cases, kilowatt-hours at sea or a straightforward days-at-sea measure. It is because we may use slightly different effort measurements in different sectors that we need to be able to define in the regulations what a day at sea is. The power to determine the days at sea is a flexible power that the Secretary of State will have, and always has had, so that we can manage our fisheries effectively.

[Peter Aldous]

I am grateful to the Minister for that explanation. He went into a fair bit of technical detail. As I mentioned, this is a big issue for our new regime and there are organisations on both sides of the argument that feel passionately about the issue of days at sea. I will not press the amendment to a vote at this stage, but I will take counsel between now and Report. If I have any concerns, I will pass them on to the Minister then. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[The Chair]

We now come to clause 18 stand part. We have had a reasonable discussion, but it is a central clause with lots of subsections. If Members wish to speak to it, I am happy to take contributions.

Question proposed, That the clause stand part of the Bill.

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Distribution of fishing opportunities

[Peter Aldous]

I beg to move amendment 84, in clause�20,�page�11,�line�26,�at end insert �and,

(ii) for �environmental, social and economic nature� substitute �environmental and social nature, thereby recognising the fishery as public property held on trust for the people�.�

I will start by giving some background information to the amendment, which sets out provisions on the distribution of fishing opportunities. At present, the distribution is inequitable and the system needs to improve. As we move to a UK fishing policy, we have a golden opportunity to bring about those improvements.

Article 17 of the common fisheries policy is retained and amended in clause 20 by stating that the relevant national authorities�the Secretary of State and the MMO�shall

�use transparent and objective criteria including those of an environmental, social and economic nature�

when allocating fishing opportunities. That is a good start, but the existing wording states that the criteria to be used may include �historic catch levels�, as well as the impact of fishing on the environment and its contribution to the local economy. The wording in the CFP, coupled with the lack of a requirement to prioritise environmental, social and local economic criteria, has meant that �historic catch levels� has often ended up being the sole basis on which quota is allocated, giving rise to the present inequitable and unsustainable distribution.

The five largest quota holders control more than a third of UK fishing quota. Four of them belong to families on The Sunday Times rich list and the fifth is a subsidiary of a Dutch multinational. Some 49% of English quota is held by companies based overseas. As is well documented and figures very prominently in all debates in this place, the small-scale fleet�the inshore vessels known as the under-10s�gets a raw deal. Those vessels hold only 6% of quota, notwithstanding the fact that for every fish caught, the small-scale fleet creates far more jobs than its larger scale counterparts. It lands 11% of fish by value in the UK, but employs 49% of all those in the industry. Similarly, more than 90% of the small-scale fleet uses passive gears, which are far better for the environment.

Solutions to the problems can be delivered through the amendments I have tabled to clause 20. Amendment 84 would legally enshrine fish as a public resource, as recognised in the Government�s White Paper. While the UN convention on the law of the sea already touches on the issue, we have a great chance to confirm in primary legislation the principle of the public resource. That in turn would establish the right foundation for distributing quota based on the delivery of public goods and environmental, social and local economic factors, as opposed to simply on the basis of historic catch levels. I look forward to learning from the Minister how we will take up this golden opportunity.

[Luke Pollard]

I am sure it will come as no surprise to members of the Committee that I agree with the hon. Member for Waveney on the amendment. When we considered amendments to clause 1, we spoke about fish being a public good. It is no surprise that fish is still a public good, and that should still be in the Bill. The White Paper states:

�We aim to manage these fisheries�and the wider marine environment�as a shared resource, a public asset held in stewardship for the benefit of all.�

That is the right objective, but it needs to be in the Bill.

The amendment gives the Minister a chance to do the right thing and include fish as a public asset for the benefit of all. The opportunity here is to be clear about the tone. In previous remarks, the Minister said that putting fish as a public good or a public asset in the Bill was unnecessary because it was already a de facto position, just as Parliament is sovereign. The argument about whether Parliament is sovereign is an argument because there are differing opinions on it, as we have seen in particular in the past fortnight. Just as the Minister has sought to mirror sections in other legislation, which he mentioned earlier, it would do no harm�I think it would be of huge benefit�if it were clear in the Bill that fish is a public good. I would have preferred that to be right up front, in the objectives in clause 1, but the hon. Gentleman is attempting to get it in at clause 20. That would be a good amendment and it is one that the Opposition will support.

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[Peter Aldous]

I am grateful to the Minister for that explanation. On Tuesday, when we debated whether the public good should be one of the objectives of the Bill, I did take on board his point: as fish is a public good already, what is the point of having it as an objective? However, in this instance, we are trying to redistribute fishing quota more equitably so that local communities can benefit, so I do not think that the earlier argument relates this time around.

The Minister has already said that he will look at the fishing statements in a bit more detail. I just ask that, before we get to Report, we ensure that the criteria for the distribution of fishing opportunities are as good as they can be. There was every intention of doing that when the common fisheries policy was reformed in 2012-13, and his predecessor, our right hon. Friend the Member for Newbury (Richard Benyon), did an lot of good work on it. However, fishing communities like the ones I represent are not yet seeing the benefits, and this strikes me as an opportunity to reinforce that point, to make sure it actually happens. I look forward to seeing what the Minister comes up with before Report, but I beg to ask leave to withdraw the amendment.

Hon. Members: No.

Question put, That the amendment be made.

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Division 10

Ayes: 5

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Labour: 4
Liberal Democrat: 1

Noes: 7

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Conservative: 7

[Peter Aldous]

I beg to move amendment 85, in clause�20,�page�11,�line�32,�at end insert�

�(c) the Scottish Ministers,

(d) the Welsh Ministers, and

(e) the Northern Ireland department.�

The amendment would require that all �national authorities� in fisheries that must abide by the new approach to fishing opportunity distribution includes devolved Administration Ministers as well as the Secretary of State and the Marine Management Organisation.

I should point out that this would not interfere with devolved powers over fisheries. It would, as the CFP does already, simply set the legal mandate for future distribution criteria according to environmental, social and local economic factors. The actual process beyond that of identifying and agreeing the criteria through consultation with experts and the public, plus any administrative approach locally, would be in the hands of the devolved Administrations and not the Westminster Government. I would welcome it if the Minister could clarify the issues and set out what he believes to be the right procedure to deal with them.

[Mr Sweeney]

I am happy to support this excellent amendment, because it seeks to ensure that in the distribution of fishing opportunities, Scottish Ministers, along with Welsh Ministers and the Northern Ireland Department�we hope, soon, a Northern Ireland Executive will be restored�would be recognised as �relevant national authorities�, alongside the Secretary of State and the Marine Management Organisation. The Labour party believes such an approach to be fair. It would ensure parity between Scottish Ministers and the Secretary of State.

In good faith, I urge the Minister to accept the amendment. A failure to do so would show that the UK Government are not at all committed to ensuring that Scotland, Wales and Northern Ireland are equal partners in our Union of nations. The amendment is therefore critical.

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[George Eustice]

My understanding is that the Labour Administration in Wales asked for it to be taken out. They no longer wished to be included in this clause. Clearly, hon. Members can ask a legitimate question: does that mean that no other part of the UK intends to abide by article 17 and are content to leave it inoperable; do they intend to address it in a different way; or have they not yet considered it, but might like us to add them to the list in subsection (6) at a later stage of the Bill�s passage? I will undertake further conversations with the devolved Administrations between now and Report to understand their intentions.

I hope hon. Members will understand that we respect the devolution settlement. Without the permission of the devolved Administrations, it is not proper for us to accept this amendment, since it is a devolved matter, but it is certainly an issue where we could have further conversations with the devolved Administrations ahead of Report.

[Peter Aldous]

On the basis that the Minister will seek clarification from the devolved Administrations on how they wish to handle this issue, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Peter Aldous]

I beg to move amendment 86, in clause�20,�page�11,�line�32,�at end insert�

�3 The documents and evidence forming the basis for allocation decisions must be made available to the public within 20 days of the decision being made.�

The amendment would ensure that documents and evidence forming the basis of any allocation decisions must be made available to the public, so as to enhance accountability and transparency in the quota-setting process. Lack of such transparency has been a key issue with the current FQA situation under the CFP. Indeed, many urban myths have developed. Myths that certain football clubs and car manufacturers own fish quota have been doing the rounds for many years. The European Court of Auditors judged the FQA system as not being fit for purpose. It has led to the trading and renting out of quota at punitive and prohibitive prices, solely for profit and often at great cost to the inshore fleet.

Once environmental, social and economic criteria are established in law as the priority for determining future quota distribution, the environmental and social criteria should be identified, but transparently, by engaging public consultation at both national and regional levels. At a minimum, they should align with the definition of environmental in the Environmental Information Regulations 2004. Social criteria could include aiding new entrants to the industry; local landing based opportunities, both in ports and in processing factories; increased landings in ports; and enhancing local cultural identity and tourism.

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[George Eustice]

The methodology for distributing existing quota between the four Administrations is set out in the publicly available UK quota management rules. In addition, each Administration have their own rules for allocating their existing quota, which, again, are already publicly available. The rules are also subject to consultation.

In our White Paper, we set out very clearly that we would have a revised methodology for the allocations, and it is of course our intention that they will be published. I understand the point made by my hon. Friend the Member for Waveney, but I encourage him to read what we already publish before taking the decision to press the amendment to a Division. We already have publicly available rules, which are published, and we have committed to publish new ones. We publish a great deal of information.

As I highlighted earlier, in the judgment in the Greenpeace court case, Mrs Justice Andrews said that

�there is a large volume of detailed rules, licence conditions, schemes and policies...which are published and openly available and which have been notified to the Commission.�

A vast amount of information is already published. I would like to share some of those documents with my hon. Friend for his weekend reading, and then he could consider whether he still has a hunger for more statutory requirements of this nature.

[Peter Aldous]

I am grateful to the Minister for that reply, and I take on board the nature in which he makes that offer. Over the years, so much suspicion has grown up over this issue. I feel that there is a need for transparency so that the industry and the public can have confidence in the system. I do think it appropriate to have what is a fairly minor amendment in the Bill, and therefore I will press it to a vote.

Question put, That the amendment be made.

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[The Chair]

With this it will be convenient to discuss new clause 19�Criteria for the allocation of fishing opportunities�

�(1) When allocating the fishing opportunities available to the United Kingdom between the relevant national authorities, the Secretary of State shall use transparent and objective criteria including those of an environmental, social and economic nature, recognising the United Kingdom fishery as public property held on trust for the people of the United Kingdom. The criteria used shall include, inter alia, the impact of fishing on the environment and the social and economic contribution to the local economy, and shall comply with the fisheries objectives set out in section 1 and any JFS or SSFS.

(2) When allocating the fishing opportunities available to them, English fisheries administrations shall use transparent and objective criteria including those of an environmental, social and economic nature, recognising the English fishery as public property held on trust for the people of England. The criteria used shall include, inter alia, the impact of fishing on the environment and the social and economic contribution to the local economy, and shall comply with the fisheries objectives set out in section 1 and any JFS or SSFS.

(3) When allocating the fishing opportunities available to them pursuant to sub-section (2), English fisheries administrations shall provide incentives to fishing vessels deploying selective fishing gear and/or using fishing techniques with reduced environmental impact, such as reduced energy consumption or habitat damage.

(4) The documents and evidence forming the basis for allocation decisions under sub-sections (2) and (3) must be made available to the public within 20 days of the decision being made, and such documents and evidence shall not be treated as exempt information under sections 21 to 44 of the Freedom of Information Act 2000.

(5) In this section �relevant national authorities� means�

(a) the Secretary of State,

(b) the Scottish Ministers,

(c) the Welsh Ministers, and

(d) the Northern Ireland department.

(6) In this Act�

�English fisheries administrations� means�

(a) The Secretary of State;

(b) The Marine Management Organisation; and

(c) any of the Inshore Fisheries and Conservation Authorities.

�English fishery� means such sovereign fishing rights as exist in the English inshore region and the English offshore region.�

[Peter Aldous]

The new clause sets out criteria for the allocation of fishing opportunities. I would like to place on the record my thanks to Dr Tom Appleby, who appeared before us in last week�s evidence session, for his work on drafting these proposed provisions.

As I have mentioned, clause 20 is a reworking of article 17 of the common fisheries policy, which seeks to incentivise better environmental practice. As currently drafted, the clause permits the Secretary of State to distribute fishing opportunities to the devolved Assemblies and English fishermen. There is a concern that it is too complex. The new clause splits those obligations into two parts, as the roles are subtly different�one is a UK determination and the other is a determination with respect to England only. There is also a concern that the way the clause was incorporated by references makes it difficult to read. The new clause seeks to improve on that.

The new clause provides the following. First, it provides a UK function in subsection (1) and an English function in subsections (2) and (3). Secondly, unlike other public assets, the nature of the public ownership of UK fisheries is not settled in legislation�we heard the reasons for that on Tuesday�although the courts confirmed in the 2013 case that has been mentioned at length that fish are a public asset. It is important that the nature of that public ownership is settled, as that would enable UK administrators to manage and dispose of the asset properly, with appropriate powers and duties being granted. It is proposed that ownership should take the form of a public trust vested in the Secretary of State in a similar way to other Crown assets managed by such organisations as the Crown Estate Commissioners.

Thirdly, the distribution of fishing opportunities would include social criteria as a means of tying in the joint fisheries statements and the Secretary of State�s fisheries statement. It would also include a means of rewarding better fishing practices. Finally, since the documentation recording the reasons for disposing of fishing opportunities to the commercial sector would involve the distribution of a public asset, there would need to be unequivocal transparency.

We examined in last week�s evidence sessions whether quota reallocation would leave the Government and the fisheries administrations exposed to legal threats. It is important to consider that question with regard to the new clause. In so doing, I highlight two issues. First, Greenpeace sought independent legal advice, which concluded that these changes would be compatible with domestic and international law and that

�a challenge to a new system of quota allocation enshrined in an Act of Parliament would be unlikely to succeed.�

That conclusion is based on two key points. First, the mandate for reallocation would be placed in a new Act of Parliament that overrides any common law and, after Brexit, will be supreme. Secondly, in the 2013 case, Mr Justice Cranston stated that in his view FQA units could be deemed as possessions falling within article 1 of the first protocol of the European convention on human rights�the right to property. He also said that FQA units had no value if no quota had been allocated or they were unused, and in any case the interference with the possession of FQA units was in accordance with law and was justified.

Taken together, these two points mean that in the scenario of mandating quota reallocation in UK law, as we are now considering in our discussion of this Bill, this is compatible�

[Alan Brown]

Will the hon. Gentleman explain how his new clause would work in terms of the devolved Administrations and how they manage their quotas?

[Peter Aldous]

I thank the hon. Gentleman for that point. The intention is not to interfere with that management through the current devolution settlement, so I do not think that he has a particular worry on this issue.

[Alan Brown]

I accept that the hon. Gentleman says that he is not seeking to change the devolved settlement; it is just that the new clause lists the Scottish Ministers. That is why I am trying to understand how it would work practically in the future.

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[Peter Aldous]

As I have said, the devolved Administrations would have a full role in this process; that should not present a problem.

This new approach would result in European companies that currently control UK quotas having to respond and show why they should keep this quota on the UK terms, and they would have to address the principles of sustainability and local employment. That approach is compatible with article 17 of the common fisheries policy and it would not be challenged by any other members of the EU. I look forward to hearing the Minister�s response.

[George Eustice]

Clause 20 simply revokes CFP rules on the distribution of fishing opportunities to EU member states, according to relative stability. Therefore, these rules will not be part of retained EU law.

Subsection (1) revokes article 16 of the common fisheries regulation. That article provides for the Council to distribute fishing opportunities to member states, which obviously will no longer apply when we leave the European Union. Subsection (2), which we have debated in some detail, simply makes article 17 of the CFP operable in the UK.

I turn now to new clause 19, tabled by my hon. Friend the Member for Waveney. We have rehearsed many of the points in our consideration of earlier measures and amendments, so I will not dwell on them in detail. I have already pointed out that I do not believe that we need a statement that fisheries resources are a national asset or public property, because that is self-evidently the case and our common law has always held as much. Indeed, recent case law has held that very clearly and we have a common law tradition on some of these matters.

I have already given my hon. Friend an undertaking that we will look at the wording of the Secretary of State�s fisheries statements, so that we can consider the catch opportunities and fishing opportunities in the context of protecting coastal communities and those who depend on fishing for their living.

A number of the other elements of new clause 19 are already accommodated by article 17 of the CFP, which we have now made operable. The commitment to have transparent objectives already exists and is made operable by clause 20, so I do not believe that this proposed change is necessary.

I will also point out that the new clause would have the effect of bringing into scope the devolved Administrations when the way in which they allocate quota to their own fleet is a devolved matter. It is for the UK to allocate limits for the whole of the UK and to make determinations of allocations to each Administration, but it is for those devolved Administrations to decide how they then go on to allocate things to their own fleet.

Finally, new clause 19(6) seeks to bring the inshore fisheries and conservation authorities within the scope of this provision. I say to my hon. Friend that that is inappropriate, since we are talking here about the allocation of fishing opportunities and quotas. The IFCAs have a role in inshore fisheries conservation doing things such as setting closures and sometimes putting limits on the type of gear that might be used to catch lobsters, for instance. What the IFCAs certainly do not do is play any role in the allocation of quota.

Since we are talking predominantly about the allocation of opportunities to fish quota species, it is not appropriate to bring the inshore fisheries and conservation authorities within the scope of this part of the Bill. I hope, therefore, that my hon. Friend will see fit to not press his new clause.

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[George Eustice]

I am grateful to the hon. Gentleman for his brevity in making an important point. I have been very clear that one of the ways of allocating new fishing opportunities that we are considering is a competitive tender process, but the tender is not just about the price to be paid. We want to judge producer organisations on their compliance track record and what they are doing to improve selectivity and reduce their environmental impact; to encourage new entrants into the industry; and to put economic benefits back into coastal communities. I believe that is the right approach. I can confirm that, as amended, the clause will make that explicit and broaden it out to ensure that we can have the type of competitive tender process that I have talked about at many stages during the passage of the Bill.

[Peter Aldous]

I shall speak to new clause 20. The distribution of fishing quota to the commercial sector is one of the Government�s most important functions. As we have heard, it will, to a very large extent, determine the success or failure of the fishing industry post-Brexit. It is generally acknowledged that the current system is dysfunctional as it encourages the over-concentration of ownership and has permitted the foreign dominance of the UK fishing business�something that other EU member states have managed to avoid.

There is a concern that the current regulations do not go far enough, as there is the matter of creating a disposal mechanism of English fishing rights as well as a regulatory mechanism. The new clause seeks to address that concern. I look forward to hearing the Minister�s response.

[George Eustice]

My hon. Friend has tabled a very long new clause. In essence, I think it seeks to do two things. First, it talks again about a national asset. It is an aspect of quota allocation that we have discussed many times before, so I will not repeat what I have said about our common law tradition and the fact that it goes without saying that it is a national asset.

Secondly, underlying the new clause is a concern that the new method of allocation that we might adopt might create new proprietorial rights for those who are successful in the tender. I can confirm that that is exactly what we are seeking to avoid through the Bill. That is why we explicitly talk about the use of catch quota rights for a calendar year. It would be possible to have a tender that had an entitlement to a particular right that would go to several years, but it would only ever be for the duration of that tender and would terminate at the end of that process. There will be no accumulated property rights in the tender or auction process that we set out in clause 22. I therefore hope that my hon. Friend will accept that, although a great deal of work has gone into drafting his very detailed and comprehensive new clause, it is in fact unnecessary.

Amendment 5 agreed to.

Amendment made: 6, in clause�22,�page�13,�line�7,�at end insert�

�( ) Before making regulations under this section the Secretary of State must consult such persons as the Secretary of State thinks appropriate.�.�(George Eustice.)

This amendment would require the Secretary of State to consult before making regulations about the sale of fishing opportunities.

Clause 22, as amended, ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned.�(Iain Stewart.)