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Fisheries (Amendment) (EU Exit) Regulations 2019

Volume 795: debated on Wednesday 6 February 2019

Motion to Approve

Moved by

My Lords, the instrument before your Lordships makes minor, technical amendments to primary and secondary domestic legislation in order to make domestic fisheries legislation operable, as part of having a working statute book after exiting the EU. There are no changes to policy made by this instrument; it makes the necessary corrections to ensure that our domestic fisheries law remains fully functional after we leave the EU.

Section 2.3 of the Explanatory Memorandum sets out the three pieces of primary legislation and 10 pieces of secondary legislation amended by this instrument. The amendments are laid out in detail in Annexe B of the Explanatory Memorandum and they fall into four main categories. There are, for instance, references to “an enforceable EU obligation” and “enforceable EU restrictions”. These are amended to “a retained EU obligation” or “retained EU restrictions” to ensure that these remain operable as part of retained EU law. For example, Section 30 of the Fisheries Act 1981 concerns the enforcement of EU rules relating to sea fishing. Amendments to Section 30 change references to,

“enforceable Community or EU obligations and restrictions”,


“retained EU obligations and restrictions”,

to ensure continued operability of these provisions on exit.

There is then a further category: provisions that will be redundant or inoperable in UK law after EU exit. For example, Schedule 4(5) of the Merchant Shipping (Registration of Ships) Regulations 1993 refers to an “EC Number” in the list of details to be recorded in the register of British fishing vessels—this has been removed. Likewise, a reference to euros has been converted to pounds sterling in the Fish Labelling Regulations 2013.

The third category has references to “member state or third country” which are replaced with just “third country” because, in this context, member states will be categorised as third countries when we exit. For example, Article 3 of the Sea Fishing (Illegal, Unreported and Unregulated Fishing) Order 2009 defines “third country fishing vessel” as,

“a fishing vessel which is not a Community fishing vessel”.

This has been amended to a fishing vessel which is not,

“a United Kingdom fishing vessel”.

Fourthly, cross-references to EU regulations are amended to bring them into line with technical amendments made to directly applicable EU regulations by other SIs. For example, in the Fish Labelling Regulations 2013, the designation of the Secretary of State to draw up and publish the list of commercial designations of fish species has been deleted because this is now provided for in Council regulation (EC) 1379/2013, as amended by a forthcoming common fisheries policy SI. This is a consequential amendment arising from the amendments made by that SI to avoid duplication of the same provision in two different pieces of legislation. Without this instrument, these 13 key pieces of domestic legislation would no longer operate effectively as part of the statute book after exit, so we would be unable to regulate these areas of UK fisheries.

This SI has been developed and drafted in close co-operation with the devolved Administrations, reflecting the devolution settlements. The amendments made by this instrument mainly extend and apply to the United Kingdom, with some exceptions, so each of the devolved Administrations was heavily involved in developing the approach. In that regard, I refer your Lordships to paragraph 4 of the Explanatory Memorandum, which sets out the extent and application of each piece of legislation. As I said, this is about technicality and operability. I beg to move.

My Lords, I am grateful to the noble Lord for the way he has introduced these regulations. I confess that I came here puzzled by the way Part 2—the amendments of primary legislation—sets out the respective amendments to, on the one hand, the Sea Fish (Conservation) Act 1967 and, on the other hand, the Fisheries Act 1981 and the Marine and Coastal Access Act 2009. You have only to look at Part 1 to see that, so far as the Sea Fish (Conservation) Act 1967 is concerned, the amendment is extremely sparse. We are provided with two adjectives—one adjective is changed for another—without indicating what the altered phrase is in its extended form. In the cases of the 1981 and 2009 Acts, the draftsman has provided us with the complete phrases. For example, Section 3(4)(b) of the Fisheries Act 1981 contains an extended phrase “enforceable Community restriction” and “enforceable EU obligations”. This is being substituted with “retained EU restrictions” and “retained EU obligations”. I found it very difficult, looking at the two lines of the 1967 Act, to know what it was really dealing with because all we have are the two adjectives.

I am grateful to the noble Lord for drawing our attention to Annexe B where the language is expanded—the noun is attached to the adjective—and which explains the situation very well. For those who are interested in parliamentary draftsmanship, it is very interesting to see how the 1967 Act amendment—drafted, no doubt, with the guidance of the Scottish Government’s draftsmen—is able to achieve so much with so few words, whereas the other two statutes have very extended amendments which require quite a lot of reading but are much more intelligible.

I offer these comments to thank the noble Lord for having explained it to me in his introduction, but also by a way of comment on two unusually differing methods of draftsmanship.

My Lords, I thank the noble and learned Lord, Lord Hope, for that point. Like him, I echo my thanks to the Minister and the team for the explanations in Annexe B, which were provided at the request of the Secondary Legislation Scrutiny Committee. It has aided all of us to get a clearer understanding of exactly how these changes to the very discrete area of enforcement powers will accrue if we leave the European Union.

I make no substantive comment on the statutory instrument—it was to the satisfaction of the House’s committees. Last week, in the other place, Minister George Eustice made it clear that there will be just shy of 100 Defra statutory instruments. This statutory instrument deals with a very discrete area of enforcement powers; I know the Minister is well aware of this issue, but there is a much bigger statutory instrument which deals with the policy issues around the many changes to policy which will happen to fisheries should we leave the common fisheries policy. It struck me and other Members as a cart before the horse situation. This is a very discrete element and it would have been helpful to discuss the two statutory instruments together.

Given that there will be some good nature required on both sides of the House to deal with this large number of statutory instruments, it would, at this stage, be wise to inform the department that it would be helpful in future—if possible—for issues which have common policy areas to be debated together.

My Lords, I thank the Minister for his explanation, and for his courtesy in meeting to discuss this issue beforehand. I also thank other noble and noble and learned Lords who have raised important points during this discussion.

I begin, once again, by raising the more general issue about the process that we are expected to undertake in scrutinising such a large number of SIs in such a short time. As the noble Baroness, Lady Parminter, said, the Minister in the other place, George Eustice, confirmed that we have 98 Defra SIs to get through before Brexit day. I am sure the Minister will recognise the enormous challenge this creates to ensure proper scrutiny, given the sheer volume of legislation that faces us in the coming weeks. Of course, we would not be in this position if the Government had not insisted that a no-deal option remain on the table—an option that very few people across either House believe is sensible or workable. We continue to be concerned that by rushing through this legislation, mistakes will occur, and that in trying to deal with such a large volume of legislation, we will not be able to do justice to the scrutiny process.

I want to return to the issues we raised during scrutiny of a previous SI last week. While we welcome the establishment of the reading room to allow invited stakeholders to have pre-sight of SIs, in practice all it does is allow for a few extra days to analyse and digest them. There is little scope for any deficiencies to be addressed or to withdraw and re-lay any SIs that are identified as being flawed. Has any consideration been given to making this pre-scrutiny process more meaningful? Is it true that consideration is being given to a wash-up process before Brexit day to potentially address these deficiencies? Has any more consideration been given to the request from my noble friend Lady Young of Old Scone for parliamentarians to be given the same opportunity for earlier sight of the drafts? If not, we are being presented with a fait accompli, and can have very little influence over the wording before us.

On the subject of process, I absolutely agree with the point made by the noble Baroness. It seems very odd that we are not debating this SI with its sister SI, the Common Fisheries Policy (Amendment etc.) (EU Exit) Regulations 2019, particularly as the Explanatory Memorandum says that they should be read in conjunction. On the same subject, the Minister will know that in its report of 20 December, the Secondary Legislation Scrutiny Committee criticised the lack of detail in the Explanatory Memorandum and asked for a more detailed one to be produced. We are pleased that the department took this criticism seriously, but he will know that this resulted in our receiving the revised version of the EM very late in the day. I hope that that process will not be repeated.

Turning to the detail of the SI, the noble Lord knows that there was some discussion in the other place about the amendments which change “enforceable Community or EU obligations” to “retained EU obligations and restrictions”. The Minister has now confirmed that the meaning of a “retained EU obligation” is as set out in Schedule 8 to the European Union (Withdrawal) Act. My question is slightly different. It is about losing the reference to the obligations being “enforceable”. Are there any implications to removing the power to enforce this SI? I want absolute clarity on that, because I do not feel that the Minister in the other place answered it satisfactorily. Can the Minister please confirm who will be responsible for enforcing the retained EU obligations in these circumstances, as the SI does not seem to spell this out? This is another example of where the EU would have had the ultimate power of action, including fines, through the European Commission. Given that this has not yet been transposed into UK law, will there be the same powers of enforcement that we currently enjoy under EU law?

I want to move on to the removal of references to Article 42 and the control regulation from the Sea Fishing (Enforcement) Regulations 2018. As I understand it, this means that an inshore fisheries and conservation officer can no longer enforce Article 42, which states that fishing vessels engaged in fisheries subject to a multiannual plan cannot move their catches to another vessel unless they have first been weighed. If this provision is removed, is there not a danger that the rules on weighing catches could be evaded and overfishing allowed to take hold? Can the Minister explain why this change was made and what is being done to manage the risk of overfishing?

I want to raise the question of access to the European Maritime and Fisheries Fund. The SI understandably deletes reference to the fund, but it is worth £30 million a year to our coastal communities. Can the Minister confirm whether these payments will therefore cease on Brexit day? Following the responses given by George Eustice on this issue, can he confirm that the size of the UK fund will match that provided by the EU? Can he confirm the date from which access to these new funds will be available? In other words, will there be an access payment gap between the end of one fund and the beginning of another?

Finally, can the Minister clarify the impact of the changes proposed to the fish labelling regulations, which he touched on? The Explanatory Memorandum now designates the Secretary of State to draw up and publish the list of commercial fish species accepted in the UK. I think I heard the Minister say that some of the arrangements for how this will work are in the forthcoming SI—which ideally would have been debated today, with this one. In the absence of that SI, can the Minister tell us by what date the Secretary of State will publish such a list? Will it be available on Brexit day? What happens in the interim if no statutory list of species is published? Is there a danger that endangered species could be fished, even for a short period? I look forward to the noble Lord’s response on these issues.

I thank all noble Lords for their contributions to the debate. I am grateful to the noble and learned Lord, Lord Hope of Craighead, for raising one of the issues that Ministers and Opposition Front-Benchers did in penetrating some of the ways in which these matters are set out. There are always lessons to be drawn out, but the drafting is apparently consistent with statutory instrument practice and guidance, applicable to all departments. But I will say to the noble and learned Lord that I am very grateful for Annexe B, which I found illuminating and most helpful.

I am grateful for that remark. It is curious, though, if it is consistent with practice, that the practice is so different. That was my point. On the one hand, you have an extremely economical presentation, and, on the other, you have a very useful but much more elaborate presentation. They are quite different.

I take the noble and learned Lord’s important point seriously and, as one of the many things I learn from these debates, I will take it back. The noble Baroness, Lady Parminter, also mentioned the scrutiny of the committee and Annexe B.

I say to all your Lordships, and particularly to the noble Baronesses, that I understand the remarks about the extent of the legislative programme. I am most grateful for the way in which we are all seeking to deal with this responsibly. It is of course absolutely essential that there is proper scrutiny. I assure noble Lords that we have been working with business managers to ensure that the pace and flow of the statutory instruments is consistent with Parliament’s capacity to scrutinise them. Indeed, Defra has drafted all the SIs in accordance with our standard practice. The drafting has been done with the full co-operation of the devolved Administrations and has been fully legally checked. Furthermore, because the SI makes amendments to primary legislation, it was necessary for the Office of the Parliamentary Counsel and the Office of the Advocate-General to check the drafting of those parts.

Clearly, as has been said—I may have alluded to it—the instrument was considered by the Secondary Legislation Scrutiny Committee and the Joint Committee on Statutory Instruments. No concerns about the regulations were raised. I value the ability to discuss, along with my officials, this or any other instrument with the noble Baronesses and any other Peers who are interested and wish to contact me before any debate. I very much hope that we will continue to do this. As I study the Explanatory Memorandum, I think it is important to highlight the contacts at the back: there is an official’s telephone number if any parliamentarian would like clarification.

The noble Baroness, Lady Jones of Whitchurch, referred to the reading room. This is an online platform that was developed based on stakeholders’ feedback to allow them to check the technical aspects of near-final SIs before they are laid in Parliament. It was designed with this specific audience in mind. I am always available to discuss these matters with any of your Lordships who wish to do so.

Before the Minister moves on from that point, I think he used the phrase, “pre-laid” or “nearly laid”—it was something along those lines. The stakeholders feel that there is not really time for them to say, “Look, you have got this wrong or those powers wrong” and for any redrafting to take place. It would be lovely if that were the case. We appreciate the concept of the reading room, but if it does not result in a proper listening exercise and the potential to make change, it is not achieving what it set out to do.

I will certainly take that point back. Its whole purpose is to be constructive and helpful.

I also understand the noble Baroness’s points about the number of statutory instruments on fisheries that will be laid. I entirely understand the intellectual argument. Today’s instrument amends only domestic legislation. Defra has kept domestic primary and secondary legislation in this one SI and will use other SIs to amend directly applicable EU regulations. For instance, there will be one on wash-up—frankly, we could not have managed it—which amends EU regulations that have only just come into force; namely, those regulations emerging after the December Council. We will be laying that in late February.

The sister fisheries policy SI, as the noble Baroness described it, has been laid in draft. The SI and Explanatory Memorandum are available on We will have an opportunity to discuss that beforehand, but also in debate and future SIs.

The noble Baronesses are right. If we had had a perfect world, I am sure that all involved with fisheries could have had the opportunity for a debate on those SIs. As this one was ready, we felt—mindful of the numbers that are coming forward and as we were discussing technical and operable matters—that we could accomplish this today.

The noble Baroness, Lady Jones of Whitchurch, referred to retained EU law: enforceable Community restrictions, EU restrictions and EU obligations. Some of this came up in the other place. My honourable friend the Minister of State is responding by letter, because it appears that this is a very technical matter which relates to the different ways that the Act can be read, depending on whether it extends to England, Wales and Scotland, or to Northern Ireland. I am assured that the statutory instrument is drafted correctly, but I will share a copy of this letter with all noble Lords who have contributed to the debate so that we are absolutely clear.

The responsibility for enforcement of fisheries in the UK will continue as it was before. This will be through the Marine Management Organisation for England and the equivalent bodies in the devolved Administrations. In England, marine enforcement officers will continue to enforce domestic fisheries legislation when the UK exits.

Much implementation and oversight will be the subject of new arrangements as proposed in the forthcoming Fisheries Bill—where we can discuss future arrangements but which is still in the other place—as well as the fisheries White Paper and the draft environment Bill, mindful of consistency with the devolution settlement. A lot of this will unfold in that discussion.

The noble Baroness, Lady Jones of Whitchurch, mentioned Article 42. This SI removes reference to Article 42 of Council Regulation 1224/2009 in the Sea Fishing (Enforcement) Regulations. Article 42, which prohibits transhipment in port, as the noble Baroness described, is deleted by the forthcoming sister SI to avoid a duplication in domestic legislation. This is because the authorisation for transhipment can already be given by way of a licence under Section 4A of the Sea Fish (Conservation) Act 1967. Consequently, the reference to Article 42 in the present SI is no longer needed. I am sorry that that is technical, but that is what the lawyers advised me.

On the very important question asked by the noble Baroness, Lady Jones of Whitchurch, about references to the European Maritime Fisheries Fund, the Government have confirmed that all EMFF projects approved before the closure date of the current programme in December 2020 will be fully funded under a Treasury guarantee. This applies across the United Kingdom. The Secretary of State announced on 10 December 2018 that after the closure of the EMFF there will be four new funding schemes to replace the EMFF across the UK. The new funding commitment will be set in the 2019 spending review, alongside decisions on all other domestic spending priorities, and will be comparable to the current programme. The devolved Administrations will lead on their own programmes.

The noble Baroness, Lady Jones of Whitchurch, asked about the list of commercial designations of fish. My understanding is that the list is currently published on GOV.UK. To be clear, the list specifies how fish species should be labelled for consumer information and does not specify which species can or cannot be sold. The list can be updated when there is a business need or a request from the sector, and that practice will continue after we leave. Any revisions need to be agreed by the Secretary of State on the basis of expert advice with a sound scientific rationale. I hope that this will reassure the noble Baroness that this is not about the Klondike: it is based on a sound rationale, science, et cetera, as well as full consultation with the devolved Administrations.

I am most grateful to all noble Lords for helping me with this SI. We will return to matters of fish by way of statutory instruments and, at some point, the Fisheries Bill. On this occasion, I beg to move.

Motion agreed.