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House of Lords Hansard
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Common Fisheries Policy (Amendment etc.) (EU Exit) Regulations 2019
26 March 2019
Volume 796

Motion to Approve

Moved by

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That the draft Regulations laid before the House on 17 January be approved.

Relevant documents: 15th and 19th Reports from the Secondary Legislation Scrutiny Committee (Sub-Committee A)

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My Lords, these grouped instruments will ensure that all the applicable parts of the common fisheries policy have effect in UK law, should the UK leave the EU without a deal. The technical amendments that they make will ensure that retained EU law provides effective and enforceable UK law, as well as continuity to businesses, while protecting the environment. No policy changes are made to the effect of the retained EU law and no change is expected in the way that the fishing industry conducts its activities as a result of the instruments.

These three instruments are closely related. Two of them amend some of the same regulations—one making simple fixes and the other transferring powers to exercise functions contained in those regulations. The third instrument amends late-emerging regulations that came into force in late December 2018 and January 2019. Together, they amend retained EU law in order to provide legal continuity for UK fisheries management post EU exit.

The amendments extend and apply to the United Kingdom. Fisheries management in the UK is largely devolved to Scotland, Wales and Northern Ireland. These instruments have been developed and drafted in close co-operation with the devolved Administrations, who have given their consent, ensuring a common approach which respects the existing devolution settlements and maintains the existing system of fisheries management. For the future, the UK Government and the devolved Administrations are working together to develop a new UK framework made up of both legislative and non-legislative elements in order to maintain a common approach in a number of areas.

Where provisions place obligations or confer functions or powers on member states, the references to member states are, generally speaking, changed to “a fisheries administration” to maintain the existing system of fisheries management. In addition, EU-specific terms, such as “Union vessels” or “Union waters”, have been replaced with an equivalent term—for example, “United Kingdom vessels” and “United Kingdom waters”—to apply them to the UK only.

I shall deal briefly with each SI in turn. The first one, the Common Fisheries Policy (Amendment etc.) (EU Exit) Regulations 2019, amends the majority of retained EU legislation. I refer noble Lords to paragraph 2.2 of the Explanatory Memorandum, which sets out the regulations that are amended by this instrument. These regulations include the following: the basic regulation; the control regulations; regulations on illegal, unregulated and unreported fishing; multiannual plans and effort regimes; the data collection frameworks, and many more. Other provisions—for example, those defining characteristics for vessels, the fishing fleet register and measures for the conservation of resources and ecosystems—will also be amended.

The instrument was presented to the sifting committee on 27 November 2018 and it recommended that it be subject to the affirmative procedure. Since then, additional detail has been added to the Explanatory Memorandum, including an annexe that more fully describes the nature of the amendments made by the instrument. It has been considered by the Secondary Legislation Scrutiny Committee, which reported the instrument due to the public and political importance of fisheries. The Joint Committee on Statutory Instruments did not report it.

The second SI, the Common Fisheries Policy and Aquaculture (Amendment etc.) (EU Exit) Regulations 2019, amends regulations concerned with regional fisheries management organisations—RFMOs. Having these in place when we leave the EU will mean that we are fully compliant with international agreements, allowing us to join key conventions in our own right. The SI also amends the technical conservation measures that fishing vessels must adhere to. These regulations are essential for the management of the fisheries activities of UK vessels, wherever they are, and non-UK vessels in UK waters.

Furthermore, amendments are made to the North Sea multiannual plan, which establishes long-term plans for the recovery, preservation and sustainable management of mixed fisheries in the North Sea. The instrument also transfers powers previously conferred upon EU entities to make legislation or exercise legislative decisions. These will now be enacted by UK Administrations, and parliamentarians will be able to scrutinise them in a way not possible when the powers were exercised by the EU. There are also minor consequential changes to domestic legislation. The instrument has been considered by the SLSC and the JCSI, neither of which reported it.

Thirdly and finally, the Common Fisheries Policy (Amendment etc.) (EU Exit) (No. 2) Regulations 2019 amend three regulations that set out exemptions from the landing obligation for certain fisheries in north-western waters and the North Sea. The minor, technical amendments to these provisions enable the UK to facilitate the full implementation of the scheme from January 2019. This will ensure that the UK continues to abide by the same conservation measures.

The SI also amends two regulations that set fishing opportunities. One sets total allowable catch—TAC—and quota for fish stocks for 2019, and the second sets total allowable catch and quota for certain deep-sea stocks for 2019 and 2020. In these two regulations, the prohibitions on the fishing of certain species in certain areas will be amended so that they continue to apply. However, provisions that put into law the TAC and quota set by the EU will be revoked because it will not be appropriate for these to apply to the UK when we become an independent coastal state. Again, the instrument has been considered by the SLSC and the JCSI, neither of which reported it.

Because these instruments make only necessary technical amendments to retained EU law that, prior to exit day, already applies in the form of directly applicable EU law, the impact is expected to be minimal and therefore a full impact assessment was not carried out. While there was no formal duty to consult, a 10-week consultation was conducted through the fisheries White Paper, which described future fisheries policy as well as the general legislative approach taken by these SIs.

Alongside that, meetings have taken place with key stakeholders from the fisheries sector, including the National Federation of Fishermen’s Organisations and the Scottish Fishermen’s Federation; the wider industry, including producer organisations; and environmental non-government bodies such as the World Wildlife Fund. Stakeholders, including the Association of Inshore Fisheries and Conservation Authorities, were supportive of the approach. We have also been happy to receive questions and comments from environmental non-governmental organisations, including ClientEarth and the Green Alliance, which we have addressed in the Explanatory Memorandum and made publicly available.

These instruments make retained EU law effective in UK law. The legislation is essential to ensure that we retain an effective system of fisheries management from day one of EU exit, so that our fishing continues to be well regulated and sustainable. This legislation is complemented by the Fisheries Bill, which creates the powers to allow us, over time, to build UK policy for a sustainable and profitable fishing industry. A previous instrument, the Fisheries (Amendment) (EU Exit) Regulations 2019, amended domestic fisheries legislation to make it effective in UK law after EU exit; some of those amendments arose as a consequence of changes made by these instruments. That instrument was taken through this House by my noble friend Lord Gardiner on 6 February 2019. I beg to move.

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My Lords, I thank my noble friend the Minister for moving these rather meaty statutory instruments. I would like to place on record my admiration for the then fisheries Minister in the other place, my honourable friend Richard Benyon, for the fisheries policy that he negotiated. It has been revolutionary and has changed the way that fisheries policy is decided and conservation measures are taken. It set the scene by allowing coastal states to agree what the conservation measures would be.

Under the new provisions that we are adopting this evening, with retained EU law and making sure, as she said, that there is a smooth transition to our becoming a third country, if one cares about conservation of fisheries going forward, how will we agree conservation measures with the nearest coastal state? The way that the map is drawn means that we virtually share waters with our nearest neighbour, France. The Scottish fisheries situation is slightly different in that Scotland does not have a near neighbour in the sense of backing up to a coastal state.

Having said that, I think that Scottish fishermen will be deeply interested in one of the few—three, in fact—rollover agreements that has been agreed: that with the Faroe Islands, where we take £200 million mostly in fish products each year. Obviously, that will compete directly with the Scottish fisheries. I understand that the agreements with Norway and Iceland are not yet available to view, but I would imagine that most of the imported products from Norway and Iceland will also be in fisheries. I have two questions on that. First, what discussions have there been in the Joint Ministerial Council on the rollover agreements to date, the future rollover agreements and the implications, particularly for Scottish fishermen? Secondly, how will we agree going forward to conserve those fish? I have always maintained that fish do not wear a union jack; they swim between the various waters and it is very difficult to control them. We need a conservation policy that will be shared on an ongoing basis with our near neighbours, the French and others, with whom we currently share a common fisheries policy. Going forward, I am sure that it will be the Government’s intention to do this.

My noble friend the Minister explained that, through these SIs, we will agree total allowable catches and quotas; and she set out the arrangements in these for 2019. She will be aware of an ongoing problem that currently plagues most coastal fisheries in the United Kingdom, which has absolutely nothing to do with the common fisheries policy. It could have—but has not—been resolved within the terms of the common fisheries policy. Will the Minister confirm—where it is appropriate and where there is a surplus in the quota—that we will take this opportunity to allow inshore fishermen, particularly under 10 metre fishermen, an increased quota of cod?

The reason I make this plea is that I was for five years the MP for Filey. There is now only one boat—or possibly there are no boats—fishing out of Filey. In that part of north Yorkshire they fish predominantly for shellfish but they have always made this plea about cod. So too has my right honourable friend the Secretary of State for Work and Pensions, with whom I visited Hastings a number of years ago to see how they would benefit from an additional quota for cod where appropriate. As we are leaving the European Union and setting up our own quota, will my noble friend the Minister use this opportunity, where there is a supply of cod, to allow these inshore fishermen access to that cod quota? It would potentially increase their livelihood and their income substantially.

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My Lords, I thank my noble friend the Minister for introducing these statutory instruments, which I welcome. As she said, it will enable us to have a smooth transition from the current arrangements with the EU, and I am pleased to know that the international agreements are well in place. I personally look forward to our taking responsibility for our own fisheries in future years, and I am delighted that work has continued with the regional and devolved bodies to make sure that this will happen.

I have three questions, but I would first like to make one or two other comments. The most important thing, which has been worrying many of us who have spoken in fishing debates before, is the question of our responsibility towards having sustainable stocks in the future and looking at total allowable catches. It is very important that science continues to work with the industry, because that is the best way forward.

The landing obligations are referred to in the statutory instruments, but I wonder whether my noble friend has more details that she would like to share with us. On the EU quota set, which was 69% in 2018, I was somewhat disturbed to learn that it has dropped to a minimum 59% in 2019. I wonder what the reason is for that.

Like other noble Lords, I have received briefing papers from the Marine Conservation Society, Greener UK and Wildlife, to name just a few. They have a series of questions, which I would like to put. The first is about enforcement when we come away from the EU. Is the Minister quite content that we will have enforcement systems in situ when we leave?

Secondly, I believe that a governance gap is possible in the way in which we currently have to report to the EU. At the moment we are slightly in limbo, because the Fisheries Bill in the House of Commons is not moving. We have also been promised a draft environment Bill, but that is still on hold; we do not have it. So the question is: if we move away and this comes into being sooner rather than later, who will actually act to hold the Government to account? At the moment, it is not clear from the statutory instruments.

I turn to the landing obligations, particularly regarding discards. This issue has troubled us over many years and I do not think that there is enough about it in these two statutory instruments. The Minister may say that it is not necessary, but it would be good to have some form of words about landing obligations, and discards in particular. I will also refer to a practice that I think is totally unacceptable: the trawling that has occurred on some sea beds around the country. Over the last few weeks I have been asking Questions on this matter and getting Answers from Ministers. The issue is not featured in these SIs but it is of huge interest and importance.

On the reporting requirements, there is no detail. I wonder therefore whether the proposed office for environmental protection is the Government’s choice. As that will not be in being to start with, have they considered using the Marine Management Organisation as a possible office to hold in the in-between time? Scientific research is hugely important, and we need to look at that in future.

There are many other areas on which I could talk with great passion about the fishing industry. I personally look forward to us gaining control over the waters around our country. I know that the negotiations will not be very easy. Some of the organisations that I have mentioned have concerns about what is in these statutory instruments, what is coming in the Fisheries Bill and the gap between the two. If my contribution tonight has slightly reflected those concerns, I think it has been worth while.

I accept the statutory instruments as they stand. I am grateful to the secondary legislation committees that have done a lot of work on this. We have a great opportunity in front of us—a way in which we can work together for the benefit of the whole. In the meantime, though, there are some practical questions that I think need answering.

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My Lords, I too welcome the way in which these statutory instruments have been introduced to the House and welcome their gist, particularly in relation to inshore fishing. However, I will press the Minister on the question of the fishing industry in Northern Ireland. Once more we are reminded that the land border that has been between Northern Ireland and the Republic is soon to become the border between the EU and the UK. Because of that, there are special sensitivities, stretching into fishing among other industries, of which we must be aware.

I ask the Minister to address the issue of the relationship between fishing in what will then be the EU but is today the Republic of Ireland, and fishing from County Down and County Antrim in Northern Ireland. The reason I raise this is that recently there was an incident where two vessels from Northern Ireland ended up in police custody in the EU/Republic of Ireland. That was a misunderstanding, but it shows how easily the sensitivities over the way in which our waters are controlled and policed can boil over into actual incidents.

What consultation has there been, particularly with the Irish Republic, on the question of policing the Irish Sea waters? This issue is particularly concerning the fishing industry in Northern Ireland at the moment as we move towards Brexit. The detailed information that the SI contains can encourage confidence, but it indicates that there can be a great difference between the written word and practice. That applies equally to the fishing industry in Scotland so far as the Irish Sea is concerned.

I ask the Minister: can we expect real sensitivity on the question of the Northern Irish fishing industry after Brexit under the terms of this SI, given the proximity of the EU to the Irish Sea situation? This is not just an academic issue; it is one of deep concern to an industry that is already under great pressure.

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My Lords, I am the longest-serving Fisheries Minister. I am therefore very concerned to intervene in this debate.

I have always been surprised by the degree to which people talk about the common fisheries policy as if there were no need for a common policy. The policy may not be the best one that we could have, but the truth is that even after these SIs are passed the idea that we can take control of what we call “our” waters is just not true. Many of those waters, irrespective of the common fisheries policy, are shared. If you are only 22 miles from France, it is not surprising that many of these waters are shared and you need a common policy. These SIs fly in the face of any sense because we are not going to have a national policy except in the areas where, largely, we have already had one. The noble and right reverend Lord talked about inshore fishermen. We have been able to deal with the inshore fishermen for a very long time, even though many of them blame their situation on the common fisheries policy when it should be blamed on the British Government under various different parties.

A common policy is essential because, first, we have shared fishing grounds and, secondly, we have shared stock. Even if the fish happen to be in our waters at a particular time, as my noble friend Lady McIntosh pointed out, they may well have come from other waters. They do not carry flags. The fact is that unless you have a common policy about fish conservation, you find yourself in a very dangerous position, because one lot of fishermen can say, “Well, I’m not going to conserve if the other lot aren’t”—and of course all fishermen believe that other fishermen are not. Let us be perfectly clear about that point: if you have been Fisheries Minister for as long as I was, you discover that that is the case. I remember a man in my own constituency, in a small fishing village of about seven or eight boats in all, to whom, after a meeting when they were complaining about everything, I said: “I thought you were going to complain about that Belgian trawler”. “Ah”, he said, “them Belgian trawlers I can put up with. It’s Lowestoft men I can’t stand”.

The truth is that there is an ability between different fishing communities to find their neighbours not terribly helpful, so if the Government think they are going to have an easy time, I have to warn my noble friend that they are not. They can no longer blame the common fisheries policy; they will have to accept responsibility. However, they will not have the power because they will not be able to control the stocks; nor will they control the areas in which we have joint arrangements.

Historically, we dealt with that. There were a lot of fish and, if someone got in your way, a marlinspike was no doubt used. We then had a more sensible policy and we are now trying to move ourselves towards some way of relating to our neighbours. The noble and right reverend Lord from the north of Ireland made a very important point about the closeness, the lines and how you organise this. I am unhappy about this statutory instrument because it is another example of us trying to do something which is manifestly worse than what we had before.

My second major point is that the fishermen have been very widely misled. They think that two things will happen: first, that we will take control of all these fisheries areas and, secondly, that they will have more opportunity to fish. We do not increase the number of fish by leaving the common fisheries policy. What we do is find the much more difficult issue of dealing with the contradictory demands of the fishermen on the one hand and of conservation on the other.

Thirdly, not only have we got ourselves into those two positions but we have removed ourselves from the very important role we played. My noble friend Lady McIntosh referred to my right honourable friend Richard Benyon, who was, in my view, the best Fisheries Minister we have had. That is a proper compliment; I really think he was. He was crucial in ensuring that we improved the conservation policies of the European Union. Our voice has always been for conservation, despite the unhappiness of the fishermen. I used to deal with fishermen who were appalled that one fought for the science. Of course, if we leave the European Union, we will not be in those discussions, so we will not be able to defend our fishing stocks. They are joint stocks; there are no national stocks or national fish. Generally, fish wander where they wish. You either have a common conservation system or a much less effective one. We make it even less effective because there will be no British Fisheries Minister there to argue the case for conservation and ensure that the common policies enhance it.

The fourth issue which seems to arise here is that we produce this policy and these agreements, saying that we will merely put into British law what is already there in European law, and then we face the fishing industry. The problem with that industry is that it touches the heart of very large numbers of people. It is, I think, smaller in size than the British lawnmower industry, but the fact is that we have a range of Ministers trying to satisfy the call of the fishermen in different parts of the country.

I share this view. I dealt with villages all the way down the Suffolk coast, that 70-mile stretch, which had a whole range of small groups of fishermen. I yield to no one in my enthusiasm for the fishing industry. But I also know that the Government have told people how wonderful it will be. I have read the speeches of my right honourable friend the Secretary of State for Defra. If I were a fisherman listening to those speeches, I would think that the land of milk and honey was coming and that there was going to be a most wonderful new circumstance. However, there will not be, because we do not create fish by political disengagement.

What will happen is that my noble friend and her noble neighbour, and the right honourable and honourable Ministers, will now be the centre of all the discontent of fishermen. They will say exactly what they have always said, which is that we have to follow the science. That means that we will have to be tough about conservation. But of course they will no longer have the European Union to blame.

That brings me to my fifth point. It was not just British Ministers who were so important in the European Union, it was British fishery scientists. We have some of the finest fishery scientists in the world. What arrangements are being made for them? How will we see that their advice, on waters that are shared and certainly very similar, will be heard by the European Union as it always was? Will British fishery scientists be excluded from the opportunities they have had up to now, because of our wanton stupidity in leaving the European Union? I see nothing in this SI which refers to that; there probably is no place for it, but I hope my noble friend will tell me something about Defra’s intention to support our fishery scientists, who are so important. Will it make sure that their voices are heard elsewhere?

My noble friend Lady Byford made some important points which I want to refer to. Of course, this SI has to keep to the simple—simple!—business of translating EU law into British law. In doing that, it once again raises the real issues of discards and trawling the seabed. In all the rhetoric about Brexit and fisheries, I have not seen any new concepts, ideas or intentions about the very serious damage done by trawling the seabed or discarding. We are waiting for the Fisheries Bill but, in what we know about it, I have not seen much evidence of any really innovative or imaginative arrangements on those issues.

Finally, I must say to my noble friend that I very much hope that she will not ask the MMO to take responsibility here. There are some real questions about the efficacy and abilities of the MMO. The truth is that, as a nation, we have not been all that good at fisheries management, even of the areas over which we have had total control. I think my noble friend Lady Byford will agree that, over the last 20 years, we have been very concerned about some of the management issues and the lack of an ear to hear the problems. Like her, I am worried that there is a gap in governance here. We are in a position in which we do not have a Fisheries Bill or an environment Bill, in any real sense. We will have the SI but, unless the House of Commons manages to do something to rescue this whole wretched business, which I pray it will, we will find ourselves outside the European Union with neither of those Bills. Therefore, this SI will stand alone, with all its difficulties and dangers. I hope my noble friend will give us some confidence that we have a plan B for governance, which we would hope to have from those two Bills.

I am sorry to have detained the House for this long, but I have done so because it seems that very large numbers of people in the fisheries industry have been sold a totally false story. They have been told that life will be wholly different, better and much more independent outside the European Union. Actually, it is unlikely that life will change much for them. In so far as it does, it will be worse, because we will no longer have influence over the people with whom we share our stocks and, very often, our fishing grounds. Of course I will support this SI, because we have to have it, but my goodness, what a miserable day for the fisheries industry.

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My Lords, I say to the noble Lord, Lord Deben, not to worry too much because the fishing industry will have already assumed that it will be sold out. It always does. I suspect that it hears all the expectations, but is very cynical about them. That certainly seems to be the case in Cornwall, where I come from.

I do not wish this debate to be a Richard Benyon love-in, but I agree with the noble Lord, Lord Deben. When I was a Member of the European Parliament, along with the noble Baroness, Lady McIntosh, I was very critical of the common fisheries policy. I was on the fisheries committee of the European Parliament. We said that there had to be regionalisation of this policy. We also said that the way international agreements, which I will come on to, are implemented has to change so that there is some conservation of the stocks of African or Mediterranean states, rather than them being completely pillaged. We also covered areas such as discard, which I will come on to as well.

The fact is that Britain took on that agenda. Whichever DG it was, I think DG14, the Fisheries Commission, was one of the most conservative and backward-looking directorates that I found in Brussels, yet we changed that. The irony is that we are leaving the common fisheries policy when we actually had significant regionalisation for a couple of years—that is still being implemented—a landing obligation, although I will come back to its effectiveness, and many other reforms.

The noble and right reverend Lord, Lord Eames, and the noble Baroness, Lady Byford, brought up control of our waters. We have absolutely no control over the fish. In fact, the spawning grounds are often in a different EEZ from where they are caught. We have negotiation over quotas, with relative stability being the problem where we can maybe negotiate, but we should never forget that we have total control of enforcement over our own EEZs, whatever nation is flagged on a vessel. If we are not controlling them that is our problem.

I can now talk a little about that, because I ceased to be a board member of the MMO at the end of January after six years of the privilege of being in that position. The MMO, like most Defra organisations, suffered budget cut after budget cut. Its main concern, which comes back to environmental protection, is that it was to do the minimum—I exaggerate slightly; it wanted to do the most it could—to avoid infraction. It did a great job with reducing resources—much better than most private industry could do. That was its challenge.

I come back to the SIs. As we have said, we are waiting for the Fisheries Bill, which is not here, but one of the most important preparations for day one of a no-deal Brexit—which is of course not in the SI and I am not asking the Minister to respond on it—is how we cope on the high seas with the very high emotions of fishermen and fisherwomen who will be excluded from their traditional fishing grounds. We saw last year at the Baie de la Seine how tempers rose very strongly over a completely different issue. There was actual conflict and physical abuse, not of people, but of vessels, and danger to individuals because emotions understandably run very high in the industry, where there is high danger to individuals considering the conditions it has to operate in. If we get it wrong on day one and there is conflict on the high seas because of it, it will be the first area where there will be physical conflict because of Brexit. It is a real issue. Both sides have to be very clear on enforcement and how they will respond to provocations. If there is one area where there will be conflict it will be this one. I very much hope that there will not be, as we all do, because there is danger on the high seas. Anyway, I am not asking the Minister to respond to that. I am sure the authorities are making sure that will be the case.

I thank the Minister for having a meeting with us, during which we went through some of these issues. I have to ask the House’s forgiveness in that I do not particularly understand the status of the North Sea multiannual plan. I understand all the other international agreements—the North-West Atlantic Fisheries Organization, the north-east Atlantic fishing organisation and the Atlantic tuna organisation. That is all being sorted out. They are international agreements and we will be a member of them. I do not understand the status of the agreement with the North Sea multiannual plan, which we know is crucial. It has been very successful in regenerating stocks in the North Sea, which effectively became an ecological desert and has become far better. I would be interested to understand whether it is an international agreement. I know that my EU sub-committee has looked at the other three international agreements, but we have not looked at that one. I would be very interested to understand what its status is and how we will continue to play a full part in it. Just for the record, I would like to ask the Minister how much the other three agreements will cost British taxpayers. I know it will be in the hundreds of thousands of pounds. It would be useful to put on record the extra cost to the British Treasury from our becoming individual members, rather than sharing EU membership.

The SI’s Explanatory Memorandum says that we are not bothering about the southern fisheries agreements that the EU has with a number of other nations in the Mediterranean and Africa, but I would like confirmation as to whether any British-flagged vessels take advantage of those agreements. Will they then be excluded from Brexit day?

One of the other areas that the Government have not declared a position on is what happens to the quotas agreed in December last year if we have a no-deal Brexit in the next couple of months. Will those quotas remain until the end of the year? At the moment the fishing industry does not know what access it will have to stocks in the rest of the year. That is one area where the Government could give a greater deal of certainty.

Coming back to money, I note that the Explanatory Memorandum says:

“The draft Regulations propose the transfer of fee raising powers”.

I would like the Minister to confirm that no additional charges on the industry will be made as a result of these SIs.

I come back to the point from the noble Baroness, Lady McIntosh—in fact from all noble Lords—that these are common stocks; they are a common resource. Advisory councils have been a great innovation. The Explanatory Memorandum effectively says that we will come out of them. I guess we have to, but that is not an acceptable solution. We have from day one to continue to work with other coastal states—I include Norway, which is an EEA member, as well as member states—to make sure that consultation and working together on the range of fish stocks will carry on, whether in the North Sea, the western waters or the Irish Sea. I would be very interested to understand the Government’s intentions.

One of the number of EU institutions that exists in the UK as a result of the common fisheries policy is producer organisations. They are very much an EU institution. They are very important organisations that allocate quotas between their members. They carry out a number of other functions to do with the common commercial policy and marketing. Will these remain exactly the same and does this SI cover that?

Finally, I want to come to conservation and sustainable yield, which the noble Baroness, Lady Byford, mentioned. It is really important. The noble Baroness, Lady Jones, will speak more about this, but I just wanted to deal with a statistic mentioned by the noble Baroness, Lady Byford. We in the EU Energy and Environment Sub-Committee were very concerned, and wrote to the Minister, about the fact that at the last agreement of the CFP in December, the number of stocks achieving maximum sustainable yield was decreasing from 69% in 2018 to 59% in 2019. That is unacceptable. The statutory target in the common fisheries policy is for all stocks to meet maximum sustainable yield by 2020, which is now next year. I would like to understand from the Minister what we are doing to achieve that, and why we are not including MSY in this area.

I completely understand that some of those quotas were increased because of the landing obligation and because there should be fewer discards. I went to an EU conference in Copenhagen earlier this year, the purpose of which was the landing obligation. All the northern European states that did fisheries were there. Not one—including the United Kingdom—was actually applying the landing obligation. It is not happening. It is not being enforced. The indicator is the number of non-discarded fish outside quota that are landed. There are hardly any port facilities for them to be landed, and there have been hardly any landings. That concerns me in its own right but, in the context of this SI, I am more concerned that perhaps we have increased quotas to take account of what is not discarded, while in reality discarding is continuing.

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My Lords, I thank the noble Baroness for her introduction to these three SIs, and for the courtesy of meeting us, with her officials, beforehand. I thank all noble Lords who have spoken in this debate. As has been said, these SIs are of vital importance to the future of the UK fishing industry. We need something of this kind because we need to understand the arrangements that will be in place on day one. If we do have a no-deal exit—I echo the view of noble Lords who have said that it is very much to be avoided and regretted—then we cannot afford to be in a situation where people on the high seas are allowed to do their own things and are not regulated at all, which may otherwise be the point. Therefore, we do need some rules about all of this.

The EU withdrawal Act set out that, in SIs of this kind, there should be only the technical details that are necessary to ensure continuity with the previous EU rules and requirements. At this point, we should just be trying to mirror, as far as we can, the existing EU rules, accepting that more fundamental changes should be matters for another day, when we are able to give the proposals deeper scrutiny and talk about the wider issues that noble Lords have, quite rightly, raised today. We have a major concern that these proposed SIs go way beyond the withdrawal Act remit—an issue raised by the noble Lord, Lord Deben, the noble Baroness, Lady Byford, and others. In a number of areas, the SIs anticipate further changes that the Government expect to make to fisheries legislation, based on the fisheries White Paper and the Fisheries Bill currently being considered in the Commons. They also anticipate that the oversight and enforcement functions will be absorbed by the new environmental watchdog, proposals for which are set out in the draft environment Bill, which is not even expected to be published in its final form until the next parliamentary Session. These assumptions were confirmed in the letter sent by Defra to the Secondary Legislation Scrutiny Committee, which had raised issues about these points.

This really is not good enough. While I understand that the drafters of these SIs do not always have UK institutions comparable to those of the EU, they have an obligation in these EU exit SIs to match the existing powers, functions and responsibilities in the relevant EU legislation, and to match, as far as they can, the powers that exist in EU institutions. These SIs fail to do that. It cannot simply be assumed that the Fisheries Bill, which we have never considered in your Lordships’ House, and the outcome of which we do not know, will provide the answers. It may also be that, when we get to the Fisheries Bill, we will have the opportunity to debate discards, the trawling of the seas and so on. Those are, quite rightly, issues for another day. What we have before us now should not be a precursor to the Fisheries Bill but, as far as possible, what we have under the current EU arrangements. That is not what we have in this SI. I hope the Minister can address these concerns in her response.

On the specifics contained in these SIs, the SIs remove the functions in the common fisheries policy that are currently overseen by the European Commission—for example, obligations to provide assessments and reports to the European Commission, including the provision of data on stock quantities and the reporting of certain catches against gear type. They also fail to replicate the Commission’s enforcement functions, which will limit the powers of the future office for environmental protection, since the functions would already have been removed from these SIs and would no longer exist in UK law. This would make it very difficult for a future office for environmental protection to take those powers on, as those would be powers that it was not already expected to enforce. As currently drafted, there is a real problem in these SIs concerning the lack of oversight and enforcement. Does the Minister accept that they fail to replicate the European Commission's functions in full? Can she explain how the department intends to rectify that omission?

The regulations in the first SI also remove the obligation on member states to carry out certain inspections and take action on certain infringements—including the establishment of effective, proportionate and dissuasive penalties. The regulations in the second SI remove the requirement to update the list of illegal fishing vessels every three months. I just give those as examples. Is the Minister concerned that these omissions send the wrong signal to fishers who—occasionally—seek to flout the rules, and that more steps need to be taken to emphasise to those fishers that they will be dealt with under an enforcement regime on a par with that of the EU from day one? It is important that the noble Baroness clarifies the position on that matter.

I now turn to the issue of the replacements for the European Fisheries Control Agency and the Scientific, Technical and Economic Committee for Fisheries. There is no apparent substitute for the important role that the EFCA plays in the co-ordination of inspection facilities at European and international levels. This whole issue of co-ordination was raised by the noble Lord, Lord Deben, who quite rightly made the point that, whatever we do, there will be a need for a continuing common policy. He is absolutely right on that. The noble Lord, Lord Teverson, was also right in saying that if we do not get that right from day one, if there is any room for misinterpretation or obfuscation on that whole issue, then there will be a real danger of conflicts on the high seas. We need to have a continuing liaison with our European counterparts to ensure that we know where we are from day one, and to ensure that everybody understands the rules. What arrangements have been made to retain third-party status and to continue to share information about the implementation of rules and standards at UK level? We need to ensure that we have some security and clarity for the fishers as well as continued conservation, which a number of noble Lords quite rightly raised as an important priority.

The regulations in the first SI also remove the ability of member states to share vessel monitoring system data with other member states when a vessel is fishing in that other member state’s waters. This could lead to overfishing, so sharing access to that data is crucial. What arrangements are being made to maintain the maximum co-operation on data sharing with other countries, and indeed with the EU?

On the STECF, the SIs remove references to its oversight and advisory role. I understand that that organisation will not have a formal function once we leave the EU, but why can the SIs not place an obligation on the Secretary of State to consult with a different specified scientific body, such as Cefas? The SI makes a more general commitment to the best scientific advice and so on, but the more we can pin this down to the actual organisations that will provide that scientific support, the more clarity we will have that it will be dealt with in an organised and effective way.

I go back to the issue of conservation, which has been a running theme through our debate this evening. The noble Lord, Lord Teverson, said that I would raise the issue of the maximum sustainable yield, and I am going to do that because it came up particularly in reference to the third SI. That SI omits the link to Article 6 of Regulation 2019/124, which states that total allowable catches should be set in line with,

“the principle of sustainable exploitation”,

and maximum sustainable yield. We need to see that important principle specified and written down. In its letter to the Secondary Legislation Scrutiny Committee, Defra said that it was omitted because the objectives will be restated and updated by the Fisheries Bill. But as I and others have already said, it is not good enough to assume that these issues will be picked up in a future Bill. As things stand, there appears to be no legal commitment to ensure that fishing limits will be set within the maximum sustainable yield, which is a very important principle. These SIs represent a step backwards for the environment and for sustainability. I would be grateful if the Minister could clarify whether she accepts that the maximum sustainable yield provision should have been retained in this SI. What steps will she take to correct the omission and ensure that it is spelt out clearly?

The noble Lord, Lord Teverson, talked about advisory committees. As he said, these SIs delete references to the advisory councils, which have played an important role in bringing stakeholders and the scientific community together in the past. Defra has explained that the reason for this is that it is consulting the sector on a new fisheries advisory infrastructure. I understand that and I know, again, that it is anticipated that this will be spelt out in more detail in the Fisheries Bill. This might all be well and good, but it takes time. The details of what will be proposed are still not clear, and there seems to be no reason why the EU-style advisory council could not have been carried on in the interim. We will otherwise have a vacuum where those consultations are not carried on on a formal basis. Does the Minister now accept that an interim arrangement based on the original model should have been written into the SIs? Will she now agree to take steps to establish an interim advisory structure before the Fisheries Bill can be finalised?

Finally, in a number of places the second SI removes a requirement to act under EU law and makes it an advisory power instead. For example, the requirement on trans-shipment procedures now becomes a discretionary power to act. This again represents a watering down of the EU legislation. Equally, there is no provision to include the recitals of the relevant EU legislation on fishing in these SIs. This goes against the promises made during the passage of the withdrawal Bill to respect and reference recitals. Again, it represents a weakening of the legislation.

I hope that the Minister has made a note of our concerns and that she is able to provide reassurance that the Government intend to make good the omissions that we have identified, and ensure that the fishing sector and environmentalists can have more confidence in the Government’s intentions. I look forward to her response.

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I thank all noble Lords who have taken part in this evening’s debate. It has certainly been a debate of great passion. I encourage all noble Lords to bring that passion to the discussions on the Fisheries Bill, during which I hope many of these issues will once again be aired in greater detail and by which we can put them in a legislative framework.

I am confident that these SIs mirror the existing EU rules, with the caveat that the rules must of course be operable. It would be pointless if we brought over rules which simply could not be operated once they reached our rulebook, so it is necessary for these SIs to look as they do. I accept that they are part of a suite of legislation. However, I would caveat that by saying that we are already fairly well down the road in the debate and discussions on the sort of national fisheries policy that we want to see in the future. As noble Lords will know, we have already had the fisheries White Paper. It went into quite some detail on what the Government feel is an appropriate national fishing policy. There was a 10-week consultation and we had a lot of feedback from various stakeholders.

What is also true is that we are leaving the European Union and, as such, we become an independent coastal state. Again, that comes with various obligations, many of which are about engaging with neighbouring coastal states and encouraging co-operation and the sharing of data. It includes encouraging the sustainability of the seas in which the fish live; when they travel across those borders, they definitely do not have a union Jack on them. I am not as pessimistic as my noble friend Lord Deben about it all being terrible and dreadful, with us being stuck out on our own. There are countries far smaller than us which have very successful negotiating strategies, are able to deal internationally and able to operate their own independent fishing policy.

I accept that we are on a journey and I hope that we get to the next stop on that journey very soon. I think all noble Lords would welcome the opportunity to have a go at the Fisheries Bill—I certainly would—but it is important that the SIs we have tabled for debate today are a temporary measure. They will put a line in the sand and say: “This is where we were at this point”. These measures will all make sense and enable us to operate the fishing policy that we currently have.

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All that my noble friend said in that last paragraph is true, except that there is a series of things which operate now and will be put into the Fisheries Bill. There are two problems with this. First, we do not know what or how those provisions will be, so we have to take it on her word—I am perfectly prepared to do so—that it will all be at least as good as the present arrangements. Has it occurred to Defra that it is a peculiar constitutional concept if the Minister asks the House to accept these laws on the basis that there will be laws, rather than having within these provisions an interim arrangement?

Secondly, the noble Baroness, Lady Jones of Whitchurch, made a point about something which I do not understand: that all these things could have been included as an interim arrangement, and that would remain or be changed when we come to the Fisheries Bill. For me, the difficulty is that I am being asked to support something which could have been complete—under the withdrawal Act, it should have been complete—but is not. It is just a promise that it will be completed in the future. I do not understand why that is.

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I think my noble friend is slightly misconstruing my words: certainly, there are elements within the legislation that could not be brought over because of the withdrawal Act, because it would have made a change in policy or would have gone beyond the powers we have within the withdrawal Act. It was simply not possible to do so, so I am asking noble Lords to consider today that we are on a journey. We have already had a huge number of comments from Ministers in both Houses about where we feel our fisheries policy is going and where we would like it to go, but we would obviously like the support and input of noble Lords as we develop that policy. Even taken by themselves, we do not feel that there are significant omissions that cannot be explained by reasons other than that we are trying to put EU legislation into UK law and it has to work. It has to stand up for itself.

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I am sorry to push the noble Baroness—she knows that I do not do this very often—but I have to concur with the comments of the noble Lord, Lord Deben. I listened very carefully to what she said, but to go back to the example of maximum sustainable yield, Defra wrote to the Secondary Legislation Scrutiny Committee saying that the commitment was omitted because it was going to be dealt with in the Fisheries Bill. Maximum sustainable yield could have been put into this SI even though it was going to be corrected, updated, or however the noble Baroness wants to reword it, in a future fisheries Bill. I give that as just one example: we could say the same thing about the advisory councils. There could have been an interim arrangement for advisory councils in this SI, understanding that in the future we might want to restructure them. Those are just a couple of examples. I am not sure that the noble Baroness is very convincing on this. We all want to have a wider discussion on the Fisheries Bill, but that is not what these pieces of secondary legislation are about.

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I thank the noble Baroness for her comments and will certainly consider them in more detail. If I can get any more information on this, I will send it to her. I repeat, however, that some of the articles were not amended because they are not operable; they are conditional upon mutual access to EU waters. We will be an independent coastal state when we leave, and that will be put in sharper relief if we leave the EU without a deal in days or weeks. We are facing this from the perspective that we will be an independent coastal state and therefore, where there are issues that rely on reciprocity and on the actions of others, we cannot put those, in all good faith, into UK law and expect them to be able to stand up.

I do not want to dwell too much on this because a number of noble Lords asked questions, but I will reflect on it and try to provide the noble Baroness with a bit more clarity. I shall get the legal team on to it to make sure that we cover it. I will say, because a number of noble Lords mentioned it, that sustainable fishing is at the heart of our 25-year environment plan. It underlined the fisheries White Paper and negotiations will be essential, whether that be with our nearest neighbours or countries further away.

The noble Lord, Lord Teverson, my noble friend Lady Byford and the noble Baroness, Lady Jones, raised maximum sustainable yield. We have always been a strong advocate of maximum sustainable yield, both in international agreements and in negotiations over catch limits for shared stocks that we have an interest in, and this is not going to change. For example, Article 6 of the TAC and quota regulation is concerned with TACs to be determined by member states and has been omitted because the Secretary of State will be determining TACs under the power in the forthcoming Fisheries Bill and current common law powers, along with the criteria for setting the quota.

My noble friend Lady McIntosh mentioned quota management and how that might exist between the different countries of the United Kingdom. Of course, we will be reviewing quota management as we leave the European Union. We described in the fisheries White Paper how we will approach this, including the possibility of moving to a new basis for allocation of any additional quota we gain through negotiation. A number of noble Lords mentioned the very important issue of the landing obligation. Again, as we set out in the fisheries White Paper, the UK Government remain fully committed to ending this wasteful and atrocious discarding of fish and we continue to work with the industry. Once we have left the EU and the CFP we will have the flexibility to do this in a way that reflects the nature of UK waters and fisheries. While we can continue to use retained CFP measures, we will also have the opportunity to adopt new measures that will reduce discarding while also preventing choke. Some examples were set out in the fisheries White Paper.

There has been much discussion today about scientific evidence; I agree that it is critical. Perhaps for fisheries more than for some other sectors, a truly international perspective is hugely beneficial, and the UK has immense strength in this area. The Government are working with the devolved Administrations to develop a replacement fisheries advisory framework for the UK that is fit for purpose and can deliver world-class scientific advice to meet our commitments. We intend to continue to collect the marine and fisheries data, as is currently happening, to inform the International Council for the Exploration of the Sea of research and stock assessments. We are currently in the process of establishing an agreement with ICES for when we leave the EU. We will continue to use its research outputs and advice as well as our own, very well respected national labs—for example, Cefas.

The noble Baroness, Lady Jones, mentioned the governance gap and the fact that the office for environmental protection has not been set up. I absolutely accept this. Noble Lords had the opportunity to question the Government on this many times in debates on recent SIs and we have made the commitment at the Dispatch Box many times as to what we intend to do to address the governance gap around the office for environmental protection, and to address the fact that it will not be set up on the day that we leave the EU. Interim measures will be in place and we have committed previously that the OEP will have the power to look back at infractions that happened before the date that it was set up.

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My noble friend mentioned Cefas. I visited the International Council for Exploration of the Seas in Copenhagen about two years ago. It has a number of leading British scientists and other nationalities who will be concerned about their status, but it is an international organisation. Have the Government formed a view as to whether we will still be a party to ICES post Brexit?

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I believe that we will be and I shall write if that is not the case—it is indeed the case.

Enforcement is an incredibly important issue. Defra is working very closely with the Marine Management Organisation, the Association of Inshore Fisheries and Conservation Authorities, the Royal Navy, Border Force and other organisations to make sure that appropriate arrangements are in place for day one. The UK will maintain its scheme of monitoring, control and surveillance through vessel monitoring systems, electronic logbooks and other reporting requirements. Over time, as we develop our fisheries regime, we will use the new powers in the Bill to create the offence of vicarious liability against, for example, owners and charterers of fishing vessels.

The noble Lord, Lord Teverson, was very clear that we should make sure that all those operating on the front line of control and enforcement are briefed on what they should do on day one: this is critical, because we have seen what has happened when things have gone wrong. People can be in the wrong place at the wrong time and doing the wrong things; tempers can get very frayed indeed and it can escalate extremely quickly. So, following approval from Her Majesty’s Treasury and Ministers, we are implementing our full control and enforcement preferred approach and putting in place a significant uplift in our control and enforcement capability for day one. In addition, the Joint Maritime Operations Coordination Centre—JMOCC—has been established to enhance joint working between law enforcement agencies and the Royal Navy to improve patrol capabilities and increase information sharing across government.

I thank the noble and right reverend Lord, Lord Eames, for drawing our attention to the issue of the Irish border. Many people think that that is a land border, but it is a sea border too, and I know of concerns about the suspension of the agreement between the UK and the Republic of Ireland due to a verdict of the Supreme Court of Ireland several years ago. This agreement allows for fishing in the inshore 0-6 nautical miles zone of Northern Ireland/Republic of Ireland waters. The Government are pleased that the Irish Government have committed to resolve the issue and to restore the agreement on the Irish side. We will certainly continue to discuss this with the Irish Government. Furthermore, we are working very closely with the Irish Government to patrol the seas in that area. It is absolutely critical that in all these circumstances, we work very closely with our neighbours to make sure that there are no misunderstandings, while recognising that, for example, control of seas around Northern Ireland is the responsibility of DAERA in Northern Ireland.

The noble Baroness, Lady Jones, mentioned the replacement of penalties. I should point out that fisheries administrations already have the power to adopt appropriate measures for ensuring control, inspection and enforcement activities under domestic legislation, so it is not necessary to bring the powers across. Where we already have the powers, obviously, we have not brought them across. The current and proposed future UK system of control and enforcement delivers effective penalties. We have no intention of weakening what we already have in place. Section 24 in Part III of the Fisheries Act 1981, for example, sets out penalties for offences, and Chapter 3 of the Marine and Coastal Access Act 2009 sets out the civil sanctions to be imposed by the appropriate licensing authority.

The noble Lord, Lord Teverson, asked about the cost of joining RFMOs. I am afraid I cannot remember what each of the initials stands for, so the noble Lord will have to forgive me, but for the IOTC—I am guessing that the T might stand for tuna; I cannot remember.

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Yes, tuna.

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Yes. The cost of joining the IOTC is £150,000 to £200,000; for ICCAT it is £100,000 to £150,000; for the NAFO it is £45,000 to £80,000; and for the NEAFC it is £400,000 to £600,000. That is the cost of our participation when we sign up as a member in our own right.

The noble Lord, Lord Teverson, also spoke about sustainable fisheries partnership agreements, which are agreements with nations that tend to be much further away. As an independent coastal state, the UK will set its own fishing opportunities in agreement with third countries, and we are considering whether and how we should replace existing agreements. The UK has not fished in Morocco since 2011 and it has not fished in Mauritania since 2012, so the only active fishing interest we currently have is an agreement with Greenland, with one vessel fishing there. That has been active in eight of the last 10 years. But certainly, we can go back and look at this in due course, once we have left the EU.

On the issue of quota and the figures, we have revoked provisions that relate to the setting of UK total allowable catch and quota for the UK. These provisions could not be made operable because it would be inappropriate for the EU to set the UK’s quota once it is no longer a member state. International quota swaps have already happened in 2019, so the fishing opportunities available to the UK as stated in the regulations are already out of date. The Secretary of State will therefore replace the current EU figures with the UK fishing opportunities, using common law or prerogative power. The 2019 figures will be published as an annexe to the UK quota management rules, which will be updated in time for exit day.

If the noble Lord will oblige me, I would like to come back to him on the legal side of the North Sea multiannual plan. I have a response here but I am not satisfied with it and I would rather write to him.

This SI brings across provisions that already exist for fees and charges. This does not in any way represent a change to the status quo, as the fisheries administrations already have this power.

Sharing of the MS data is of course a very important issue. A number of provisions in the CFP oblige member states to co-ordinate with or assist other member states, often in close co-operation. The UK absolutely intends to co-operate with the EU and our other neighbours, but of course is unable to legislate for co-operation with member states in the absence of international agreements, which I hope we will get in the future. Data for scientific purposes will continue to be collected and shared with international organisations such as ICES and the RFMOs. The data will also be published, as it currently is.

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Perhaps I might press the Minister on that a little. It sounds like that is all a project for the future. However, it would have been nice to have been reassured that, notwithstanding that we will not be part of the current arrangements, discussions are already taking place with our European counterparts to make sure that a mechanism, however informal, for that continuity of data sharing will be in place from day one, rather than starting the discussions after we have left, when there is bound to be a gap in data sharing. Perhaps she could reassure us that this is already being actively discussed with the European Union.

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I am not able to comment on the meetings that have happened to date on this issue, but I am very happy to find out for the noble Baroness and to write to her with that information.

Finally, I want to address the issue of amending the powers from “requires” to “allows”. I completely understand why this may have looked a little odd. However, powers of the European Commission are often drafted into EU law as obligations for the Commission to legislate. This is essentially an instruction—from the European Parliament, for example—for the Commission to legislate to fill in the technical gaps, which, obviously, the Commission goes off and does itself. But in the majority of cases the Commission will already have legislated in relation to these powers, and many of the Commission’s delegated and implementing Acts which resulted from the exercise of these powers are of course being rolled over into UK law. In these cases, there is therefore no longer a requirement for these powers to be drafted as obligations, as the obligation has already been discharged. However, the Secretary of State and/or the devolved Administrations might want to make those changes, as appropriate, in the future, and therefore “requires” becomes “allows”.

Motion agreed.