Cynulliad Cenedlaethol Cymru

National Assembly for Wales

Y Pwyllgor Newid Hinsawdd, Amgylchedd a Materion Gwledig

Climate Change, Environment and Rural Affairs Committee

MCD mewn perthynas â Bil Pysgodfeydd y DU

LCM in relation to the UK Fisheries Bill

NHAMG (5) FB02a

CCERA(5) FB02a

Ymateb gan Yr Athro Richard Barnes

Evidence from Prof Richard Barnes

 

General

In general, the Bill establishes a UK-wide framework for fisheries management.  However, since fisheries is a devolved matter only the basic coordinating aspects of this extend to the devolved administrations.

 

In Wales, the fisheries authority are the Welsh ministers.

 

I expect most attention to focus on clauses 1-2 (Joint Fisheries Statement), and effects thereof; and clauses 36-41 (power to regulate fisheries matters), and general concerns re the extent of devolved powers. 

 

Devolved Matters

Fisheries management is a devolved competence.  However, the UK remains responsible for the international commitments of the UK in respect of fishing, as well as a range of other reserved matters.  As such, the Fisheries Bill needs to balance the operation of matters.  This is challenging since it is not easy to simply divide matters into international/domestic competence. For example, the UK may be required under international law to implement certain gear restrictions of conservation and management measures.  Also, the basic agreement over fishing entitlements, through the setting of TAC is undertaken in cooperation with other States, since many stocks are shared and so quotas are agreed internationally. 

The 2020 Bill makes changes to the previous Bill.  Some changes are significant for Wales:

In general, the Bill further enhances the authority of the Welsh ministers to regulate fisheries in particular areas.  However, the same concerns remain regarding the power to determine fishing opportunities –a tension about whether this relates to a reserved or devolved competence, and so requires legislative consent (note below). 

The Legislative Consent Motion presented on 12 February covers the main changes and accurately reviews the provisions requiring consent.

The powers for the Welsh minsters in the Bill may be regarded as ‘interim’ since they can be supplemented/developed with a Wales specific Fisheries Bill.  There is scope in the latter to go beyond some of the provisions in the UK Fisheries Bill to better reflect sustainability or social or economic concerns at a Wales level. This could include additional provisions on marine protection, by-catch or gear controls. The generic nature of the UK Fisheries Bill is such that conflicts may be unlikely.  Again, coordination through the JFS process could help pre-empt this in practice.  

Joint Fisheries Statement

The national fisheries authorities of England, Scotland, Wales and Northern Ireland are required to produce a joint fisheries statement (clause 2) setting out how they intend to achieve the fisheries objectives defined in the bill. A draft JFS would need to be laid before the Welsh Assembly (and similar in other DA, before it can be published, thereby enabling further scrutiny of content.  The JFS would have to set out the policies for achieving the fisheries objectives set out in clause 1 (a) the sustainability objective; (b) the precautionary objective;  (c) the ecosystem objective;  (d) the scientific evidence objective; (e) the bycatch objective; (f) the equal access objective; (g) the national benefit objective; and (h) the climate change objective. The JFS will contain provisions on or referring to fisheries management plans.  These are either existing or future plans that show how the details in the JFS will be put into operation. The precise status of the JFS is unclear since it will seek to coordinate fisheries policies within the UK – so may in effect curtail or direct the exercise of fisheries powers at the devolved level. Although a FMP can depart from the JFS, reasons for this must be given by the national authority.

 

Sustainable Fishing

The Introduction of the provisions on the JFS strengthen the Bill, particular given the importance of a having coordinated policy for the UK as a whole.  This can better ensure ecosystem and cross-jurisdictional issues are addressed, at least within the UK. 

A general caution about the link between the objectives contained in the JFS, then put into operational terms in the Fishery Management Plans (FMPs), will be the extent to which there is adequate scrutiny and accountability for achieving objectives.  This is because the objectives in the UK Fisheries Bill are drawn in broad terms.  The fact that there is a power to depart from the JFS in the FMPs when minsters decide this is necessary for a ‘relevant change of circumstances’ (cl 7) or when the fisheries management authorities wish to depart from their duty to exercise their functions in accordance with the JFS/FMP (Cl 10).  Legally, this will be covered by the potential for judicial review. Politically, this will depend upon the rigour of scrutiny of the JFS/FMP and reports thereon.

There is concern (from environmental groups) that the UK Fisheries Bill lacks a clear duty to require that stocks be managed at levels that produce the maximum sustainable yield. It provides a weaker commitment to the MSY than Art 2 of the CFP.  MSY is a requirement under UNCLOS, although is qualified by economic, developmental and environment factors (Art 61(3)).  Under the UK Fisheries Bill, MSY remains a policy objective. There is no target date for policy measures to be adopted that will achieve the MSY.

 

Fishing Entitlements.

Under the CFP, the UK’s share of the total allowable catch determined annually at the December Fisheries Council was distributed between England, Scotland, Wales and Northern Ireland according to an agreed system of fixed quota allocations.  This was established in 1999 and based on amounts of fish landed during a fixed reference period (1993-6).  All four nations manage their own fishing quotas and licensing of fishing boats in line with a concordat agreed in 2012. Maintaining the status quo internally is likely to help avoid disagreement, which in turn could unravel the current fisheries settlement in the UK. However, there is a growing awareness of a need to consider the position of inshore fleets that operate mostly out with the quota system and who are seeking some degree of rebalancing in the availability of fishing opportunities.  In effect securing a greater share of existing opportunities, either by a rebalancing of quota, or a greater share of new fishing opportunities post Brexit.

When the Bill appeared in the last Parliamentary session, some its provisions concerning the balance between UK and devolved competences generated disagreement between the UK and devolved administrations.   Thus the Scottish Government took the view that provisions on determining fishing opportunities required legislative consent because it was a devolved matter. There were also calls for amendments to provisions on quota and effort limits, seafood levies and support funding. The Welsh Assembly were critical of provisions on determining fishing opportunities.[1]  In practice it may be difficult to identify particular conflicts of interest (and authority) in advance, so having a mechanisms that allows room for manoeuvre and political accommodation is important. This may involve avoiding a hard/abrupt division of specific competence in primary legislation.

The setting of the UK TAC will be done by the UK government (cl 23).  This is referred to as determining fishing opportunities. This could include setting a zero opportunities (either quota or effort), replacing existing opportunities, or withdrawing existing opportunities. This must be done in consultation with the DAs (cl 24).  If there is disagreement , then it is not clear how opportunities would be determined. Presumably, the UK Government could simply set them, since consultation is not the same as permission.  This may be an unpalatable point politically, but conflict could be avoided in practice through careful consultation and management of expectations. The UK Government will also distribute fishing opportunities within the UK to the DA’s.  In effect this replaces the mechanisms under the CFP where by the Commission determines fishing opportunities for each Member State, which in turn has discretion over how that is distributed. Under the Fisheries Bill, each devolved administration will continue to decide how fishing opportunities are allocated to their respective fleets.

It is expected that the way in which fishing opportunities are distributed within the UK will remain the same as there were under the CFP.  Here quota opportunities are apportioned administratively to each of the four fisheries administrations by the secretary of state according to a methodology set out in the UK Quota Management Rules (QMRs).  This is based on arrangements made in the 2012 Fisheries Concordat. Fixed Quota Allocations (FQAs). This is based upon catch levels during a reference period of 1993 to 1996.  It is notable that some degree of continuity of quota allocation is expected, with the Fisheries White Paper indicating that there would be no changes to FQAs, other than to account for new fishing opportunities post Brexit. This reflects the desire to avoid disrupting expectations, destabilizing fishing practices and respecting investments (eg new boats/gear) made in fishing on the basis of those expectations.

Fisheries Administrations are under a duty to ensure catch or effort quotas are not exceeded (cl 26)

Licensing powers.

Such powers are vested in the fisheries authorities (Cl 15).  However, the Secretary of State can make regulations that control licensing across the UK.  Such regulations can only be adopted with the consent of the DAs. This is intended to balance the devolved settlement with the need for consistent rules across the UK. The DAs can issue licences for foreign vessels for fishing in their respective waters (cl 17).  Such licences only apply to those waters.  For example, a Scottish licenced EU flagged fishing vessel could not fish in waters subject to regulation by the NI department.  However, a Scottish flagged British vessels could exercise licence rights in NI waters.  The Delegated Powers and Regulatory Reform Committee commenting on the last version of the Bill (which is virtually the same as the present version) suggest this will provide a degree of transparency in licencing regulation.  The Law Society of Scotland take the view this replicates the status quo – that a licence issued by a UK Fisheries administration will be effective throughout UK waters” for British boats. 

Powers to impose charges for carrying out administrative functions is established under cl 34 (And Schedule 7).  This includes setting fishing quotas; ensuring that commercial fishing activities are carried out lawfully; registration of buyers and sellers of first-sale fish; and issuing catch certificates for importing and exporting fish.

 

A potentially difficult issue is the way in which powers to regulate over international aspects of fisheries is balanced with the devolved management of fisheries. This is covered by Cl 26-42. 

Cl 36 gives the Secretary of State power to make regulations: for the purpose of implementing the UK’s international obligations relating to fisheries, fishing or aquaculture; for a conservation purpose; or for a fish industry purpose (eg marketing).  These powers are considered necessary by the UK Government to ensure the UK can operate as an ‘independent coastal State’ (unspecified by could include eg negotiating quota exchanges, or conservation rules, or closed fishing areas).  Such powers cannot be used to regulate matters within the legislative competence of the Scottish Parliament, Welsh Assembly or Norther Ireland Assembly (unless that provision is merely incidental to, or consequential on provision which would be outside their legislative competence ).  Regulations can be made on matters that are devolved if consent is obtained from the devolved administration. There is a general requirement of consultation in respect of cl 36 powers.

 

Any regulations relating to the amendment or repeal of primary legislation; amendment of article 17 of the Common Fisheries Policy regulation; fee imposition, creation of criminal offences or regulation of a UK producer organisation or inter-branch organisation would be subject to affirmative procedures. Other matters would follow the negative procedure.

 

Corresponding powers for each of the DAs in its area of competence are created under Cl 42 (and schedule 8). Thus each DA can also regulate for matters related to the above.  In effect this mirrors the provisions in respect of what were devolved powers. 

 

Financial Assistance to Fishing Industry

The Bill now contains provisions enabling the devolved administrations to establish financial assistance schemes in their respective administrative areas in order to replace the European Maritime and Fisheries Fund (EMFF). Power to establish funding mechanisms to support fishing is provided under cl 33 (and Schedule 6)

 

Historic Rights

The UK withdrew from the London Fisheries Convention on 31 January 2020.  As such, there are no rights for EU fishing vessels to continue to fish in selected areas of UK waters under the agreement.  However, the enjoyment of such treaty-based rights was superceded by the CFP, which establishes rights of access to certain waters between 6-12nm (See Article 5 of the CFP Regulation, and Annex I).  Such rights of access will continue until the end of the transition period.

 

Answers to the indicative questions

 

Introduction

 

·         Views on how the 2020 Bill compares to the 2017-19 Bill.

There are general changes and changes specific to Wales (and other DAs)

 

The general changes are the inclusion of new fisheries objective for climate change and the national benefit, and the replacement of the discards objective with a bycatch objective.  The development, implementation and review of the JFS is improved, and strengthened by the new provisions on fisheries management plans. There should be efforts to prevent any discarding, so all catch must be landed in order to enhance the quality of information about what is being taken from the sea.  The bycatch objective does not seek to eliminate bycatch – only prevent or reduce.  This does not deal with discarding issues. Para (c) is poorly phrased. Bycatch or non-target species must be landed.  There must be no incentive to land bycatch.  This is not simply about how we account for non-target species, but about ensuring that incentives to fish selectively (and developed selective gear) are compelling and drive fishing practices in the right direction.

 

Changes specific to Wales are:

 

·         Views on whether the provisions provide a suitable legislative framework

My view on the previous version of the Bill was that this was a good general framework, but that it could benefit from having some of the duties and environmental constraints enhanced.  The new Bill contains some important changes that enhance its environmental credentials.

 

Changes to the fisheries objectives

·         Views on the additional fisheries objectives (national benefit and climate change)

The concept of the national benefit objective is loosely defined and potential of wide application.  It is difficult to assess what it means in specific legal terms.  It is potential a compromise on the notion of the public benefit.  Notions such as public good or public interest are very difficult to define. It could refer to landing requirements at UK ports (something indicated by the Secretary of State). It could refer to economic benefits of quota reallocations to particular sectors. It could refer to the recovery of management costs – something strongly flagged in the White Paper.  It could refer to pretty much anything.  One area that was not developed in the Bill from the white paper was the notion of stewardship: the idea of an asset held and used for the benefit of all.

 

The definition is somewhat limited, however, since it refers only to UK boats.  I think that a change should be made to link national benefits to any fishing activity in UK water. If fisheries are a public asset, then the use of this asset should be for the public benefit. The reference to climate change includes both mitigation (ie steps to reduce the causes of climate change) and adaptation (steps to adapt to climate change).  The former might include measure to reduce fuel intensive fishing efforts (eg heavy bottom gear), taking account of the carbon footprint of both fresh/frozen production, and different species carbon footprint.  The latter flags up the need to consider, and this is important, how climate may impact specie distribution. This may have impacts on zonal attachment of stocks over time.

 

The climate change objective is important in symbolic and practical terms since it will help factor critical climate related matters into fisheries management.

 

·         Views on the bycatch objective (and how it compares to discards objective)

Bycatch effort target measures at the point of capture, and this is the most appropriate focus of regulation.  Discarding should remain strongly controlled.

 

The bycatch objective is more nuanced. First, the focus on reducing bycatch avoids the concern that the reducing discards implies that a degree of discarding is permissible

 

·         Views on the ‘sustainability objective’

The 2020 Bill strengthens the sustainability objective, by providing that fishing capacity of fleets is such that fleets are economically viable but do not overexploit marine stocks. This would suggest that fleet capacity is subordinate to the sustainability of fish stocks.  In practice, I think it is more likely that specific actions like the setting of TAC, or the use of particular technique will threaten the sustainability of stocks.  What may be critical is how capacity is managed over time in light of stock fluctuations.

 

·         Previously, you stated that the fisheries objectives would be strengthened if they were restated as duties. Is this the case with the 2020 Bill?

The fisheries objectives were not defined as duties in the previous Bill.  They are not defined as duties in the current Bill.  They remain as policy objectives.  However, the function of these objectives has been strengthened in the new Bill by making the link between the objectives and the JFS or SSFS (this deals with non-reserved matters and UK quota issues) clear.  There is a clearer pathway between the objectives and FMP, so I think the scope for the FO to influence the actual conduct of fishing is better.  In the previous Bill, the JFS is a document in which the fisheries policy authorities state their policies (however expressed) for achieving, or contributing to the achievement of, the fisheries objectives.  There was a duty to prepare a JFS, and review this, but the commitment to incorporate and use the FO remained ill-defined.  In the new Bill, the duty to adopt a JFS is foregrounded, and the JFS must set out policies on how the FO will be achieved.  Additionally, there is a requirement to explain how a Fisheries Management Plan will achieve or contribute to the achievement of the FO, and a requirement to explain how the FO have been interpreted and applied in the policy and plans. The requirement to provide reasons will be important in helping hold decision-makers to account. Given the ambiguity in the FO, this perhaps represents a reasonable compromise between strong duties and flexibility in a challenging and dynamic policy areas.  At the very least transparency of policy objectives is enhanced. Given that there is a duty on national authorities to exercise their functions in accordance with the JFS/SSF and FMP, the function of objectives is further strengthened.  I would add also that although there remains a get out clauses that allows the authority to exercise its functions other than in accordance with the JFS/SSFS and FMP when there is a relevant change in circumstances, there is a duty to describe the decision, the change and the how the change affected the decision.  This enhances the compliance of the authority with the provisions of the JFS/SSFS and FMP.

 

Changes to the joint fisheries statements

·         Views on the new fisheries management plan requirements

The FMP are a very positive development. The requirement for these to assess whether scientific evidence is sufficient is important.  It reinforces the role of science.  If the evidence is sufficient (questions about how this is determined?), then the FMP must specific policies for maintaining or restoring fishing to sustainable levels.  Interestingly, this does not refer to the MSY, so perhaps allows for lower thresholds to be set.  That’s said MSY has been a mutable concept in practice.  The precautionary approach must be used. There is no time frame for the target of ‘sustainable fisheries’.  This is in the view of some a retrograde step from the CFP, although it seems more realistic in light of challenges of securing the MSY

 

·         Views on the new deadline for the production of joint fisheries statements (JFS)– is it appropriate and achievable?

The move to an 18-month timeframe allows more room for manoeuvre, especially if progress of the bill is delayed.  The previous act set this as a specific date (1 Jan 2021) which could have been incredibly challenging.  Given that there is scope for amendment to the JFS to be made at any time, there is further flexibility.  I would expect that industry would prefer a degree of certainty in the development and review of JFS, so continual ad hoc reviews should be avoided. 

 

·         Comments on any stakeholder engagement regarding the development of the JFS?

This is covered in Schedule 1.   There are two stages: general consultation, and legislative scrutiny.  The former may directly permit stakeholder engagement.  The latter might permit indirect input through political lobbying.  There I not requirement to respond to consultation feedback.  There is no privileging of positions between stakeholders – either as members of the general public or having direct industry interests. It is unlikely that a legal challenge to the JFS could be sustained on the basis that consultation views were not specifically taken into account. There is a lack of detail on the time limits for consultation.  This could be set in secondary legislation. A failure to allow a reasonable amount of time, or a failure to publicise the draft JFS in a way in which it could be accessed could be subject to challenge.

 

·         In previous evidence you suggested that provisions in the Bill enable the fisheries policy authorities to deviate from the JFS and fisheries objectives – is this still the case / concerns.

Yes, although the duty to provide reasons is strengthened.  This may assist with accountability. As will the new requirements of reporting the extent to which the JFS policies implemented, and the fisheries objectives are achieved. (cl 11).  The periods of time (each 3 years) for reporting are reasonable.

 

·         Are you aware of any other framework documents being developed to supplement the legislative framework provided by this Bill?

No, although I think some guidance would be useful.  However, given that the parties engaged in developing this guidance would be the fisheries administrations (eg MMO, Marine Scotland, NRW), then this may not be practicable.  Attention should be given to developments in respect of the Environment Bill, which extends to the marine environment, and so will overlap with some of the conservation and environmental objectives in the Fisheries Bill. For example, the Environmental Bill requires that environmental protection be integrated into the making of policies; preventative actions be taken to prevent harm to the environment, and damage should be rectified at source as a priority.  At the level of the JFS, some reference to Environmental Principles may be required beyond the Fisheries Objectives to ensure joined up policymaking.  The JFS or FMP may require more specific measures to meet wider environmental objectives, such as measures to prevent loss of gear, certain types of fishing practice that causes harm to the environment.  More generally, measures and evaluation thereof will be factored into reporting requirements under the Environment Bill proposals. 

 

Additional and broadened powers for the Welsh Ministers not previously included in the 2017-19 Bill (Schedules 5,6 and 7)

·         Views on the new provisions which confer powers on Welsh Ministers in relation to the sales of rights for Welsh catch quota and effort quota (schedule 5); is the breadth of power appropriate?

It is only for additional quota secured as a result of leaving the EU. Sale can be by tender or auction, and so could be used to generate returns from the quota.  The power to deal with sales is widely defined, and can be conditioned, delegated (eg to POs), terminated, sale revenues used and so on. It includes reference to other criteria, such as environment, so could be used drive certain types of fishing practice (eg low impact). It could be used to sell quota to foreign fleets. As an annual sale right, it allows for flexibility in the way the power is exercised.  There has been a push for the benefits of an additional quota to be made available to particular sectors (eg U-10), but this is not indicated in the Bill. The sale of quota in this provision is limited – perhaps unlike quota held under FQAs, which generate expectations of continuity of holdings.  It could be linked to the national benefit, but here is a good example of where the link between objectives and activities is weak – there is no requirement to exercise particular powers with regard to specific fisheries objectives. The exercise of powers here would be to be constrained, for example to ensure quota is not further concentrated.  This was an issue flagged by the Delegated Powers and Regulatory Reform Committee DPRRC re sales: These concerns (that the Bill make clear that quota would not be sold exclusively on the basis of price and that any sale be expressly subject to prior consultation) are addressed by clause.

·         Views on the scope of financial assistance powers (schedule 6)

The list of indicative purposes of funding is expanded in the new Bill: environment, development, business reorganisation, aquaculture and recreational purposes remain.  Health and safety, training, regional development, and improvements in catch/effort quota arrangements are included.  I would note that training is linked to or extended to persons wanting to enter fishing, or their family members. It is not clear in the Bill whether financial assistance can be given for purposes other than those set out in the schedule, eg fisheries tourism.

 

There is no necessary link to specific fisheries objectives.  Also, the provision of financial assistance will be conducted under sperate regulatory arrangements, and not necessarily covered by the JFS.  Financial assistance is devolved; and limited in respect of each DA’s vessels or waters. This could/should be coordinated.

 

·         Views on new provisions in schedule 7 which confer powers on the Welsh Ministers to make regulations to impose charges in respect of relevant marine functions / is the breadth of power appropriate?

The power established for the DAs is equivalent to the power of the MMO in respect of England. The powers are broadly defined and enable the Welsh Ministers to determine how to use charges to assist with cost recovery/control of fishing.  There is scope for different charging regimes to come into operation in different waters.  This may impact the way in competitiveness of fleets in different jurisdictions.  Some degree of harmonisation/consultation may be useful.

 

Scope of powers (including schedule 9, part 2)

·         Views on the clarity provided by the LCM on intended use of the regulation and order making powers in the Bill.

This includes licencing powers under cl 15-6 (schedule 3), setting fishing opportunities (cl25) amended powers under the MAACA 2009 (schedule 9) re conservation measures (subject to consultation with other UK administrations), and sale of fishing opportunities in year (schedule 5).

 

A potential concern here is the residual power of the Secretary of State to make Regulations under cl 36, and how the line between devolved and reserved powers is managed.

 

 

·         Views on whether there are provisions in the UK Bill that could be brought forward via a Welsh Fisheries Bill at a later date.

It would make sense to develop a ‘Wales Fisheries Bill’ at a later date, given that it could then make use of the expanded powers under the UK Fisheries Bill – eg extending to full Welsh zone. Developing a Wales Fisheries Bill will be important in making clear the extent of delegated powers. Having the main powers, structures and competence set out in a single Bill would provide focus and clarity, so I would urge an integrated approach, reflecting the main structures and concepts used in the UK Bill. Interesting to see how for example the FO might be articulated in the Welsh Bill: eg relationship with the Well-being of Future Generations (Wales) Act 2015. Eg articulating the notion of national benefit with regards to the wider not ion of social, economic, environmental and cultural well-being.

·         Views on the provisions in schedule 9 (Part 2) which broaden the scope of existing powers of Welsh Ministers to make Orders.

No additional comments on this.

 

Fishing Opportunities and access

·         Views on whether the provisions are sufficient to ensure greater benefits to Welsh fishers from the allocation of quota in the UK.

The Bill is designed in part to deal with/leverage the benefits of exclusive control over UK waters.  Hence focus is on access/licensing and general powers to manage fisheries. The Fisheries Bill does not deal with access to markets.   This is critical for the sector in Wales.  It is important not to lose sight of this. The enhanced powers for management as a devolved level suggests there is capacity for the Welsh Ministers to develop policies and rules that enable some of the benefits of enhanced quota to be captured. Attention should be paid to the non-quota sector since any changes to ow the sector is regulated may have spill over impacts on the non-quota sector.

 

·         Comments on whether you expect the Bill to result in any changes to how quota is allocated.

In the short-term, I do not expect there to be significant changes in quota allocation. First, the main priority will be on stabilizing quota over key species (pelagic stocks) and perhaps a range of stocks in inshore waters. Second, there will be some offsetting in respect of quota for fish in UK waters that are not target stocks for the UK fleet eg whiting, sand eels.  Third, there is considerable uncertainty as to what a future fisheries Agreement with EU and with Norway will bring in terms of quotas and access.

·         Comments on the provisions relating to access in the Bill.

The provisions on access of foreign boats remains the same as under the previous Bill. It removes the rights of access to foreign flagged vessels previously enjoyed under Art 5 of the CFP. The objective of equal access of UK boats is retained. The Bill does not deal with the nationality of vessels. It does not deal with foreign owned vessels that are registered in the UK, which would continue to enjoy access to waters and quota holding under the FQA.

 


[1] Welsh Government, Supplementary Legislative Consent Memorandum (Memorandum No 2): Fisheries Bill, p 2.