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Common Fisheries Policy (Amendment etc.) (EU Exit) Regulations 2020

Volume 808: debated on Wednesday 2 December 2020

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Common Fisheries Policy (Amendment etc.) (EU Exit) Regulations 2020.

Relevant document: 32nd Report from the Secondary Legislation Scrutiny Committee

My Lords, I hope it will be helpful to your Lordships if I speak to both regulations on the Order Paper, given the close connection between them.

These two instruments cover all four nations of the United Kingdom. We have worked closely with the devolved Administrations and they have given their consent to the instruments. This ensures an approach that is consistent with both the devolution settlements and the existing system of fisheries management.

The common fisheries policy imposes a common approach to the sustainable management of fisheries across the European Union and its waters. Under Annexe 2 to the Northern Ireland protocol, several provisions of the CFP will continue to be directly applicable in Northern Ireland from the end of the transition period.

The first instrument is needed to make operability amendments to retained EU law, update changes made by previous fisheries SIs and remove elements of retained EU law that are not relevant to the UK. It makes technical amendments to retained EU law in three policy areas: discards, quota and data collection.

This instrument amends the EU’s 2019-21 discard plans, as amended by the EU in 2020, to take account of the latest scientific advice regulations, which set out scientifically justified exemptions to the landing obligation. The amendments replace references to EU bodies with references to the relevant UK ones and remove the requirement to report data to the Scientific, Technical and Economic Committee for Fisheries, or STECF. We have removed this requirement because the UK, not the EU, will now take the decision on discards exemption and our future catching policy. This is in line with our approach taken throughout our EU exit SIs.

The UK will still continue to collect and review data, guided by the scientific evidence objective in the Fisheries Act. We have been very clear throughout the parliamentary debates on the new Act that future fisheries decisions will be based on scientifically robust evidence. We are working closely with our world-class scientists in Cefas, our partners around the UK and their scientists, many of whom previously advised STECF.

In the longer term, we expect that the process of reviewing any new exemptions we propose to bring forward will be undertaken by a replacement scientific body, which will provide UK-wide independent reviews. We will continue to ensure that any new exemptions are subject to robust scientific review. We are currently developing options for how to deliver authoritative UK-wide independent advice, with an expectation that it will be in place later in 2021.

This instrument amends the 2020 total allowable catch and quota regulations in retained EU law, amending references to ensure that the rules continue to apply effectively to UK vessels once they cease to be within the scope of the CFP. The instrument also makes amendments to the Data Collection Framework, which requires EU member states’ vessels to conduct certain surveys at sea. The list of surveys is being replaced with a reference to the UK’s national data collection work plan to avoid UK vessels being required to conduct surveys in areas not relevant to the United Kingdom.

Moving on, the second instrument is needed to enable the enforcement of EU law where it is directly applicable in Northern Ireland. This will also help the UK to play its part in ensuring sustainable and traceable fishing practices, and enable the UK to meet its obligations under the withdrawal agreement and accede to the UN’s Agreement on Port State Measures—PSMA—at the end of the transition period.

This regulation also contains provisions implementing our obligations to a number of regional fisheries management organisations—RFMOs—to which the UK is in the process of acceding as an independent contracting party. These international organisations are ones of which we were previously members by virtue of our EU membership.

This instrument makes technical amendments in three policy areas: enforceability; sustainable and traceable fishing; and illegal, unreported and unregulated fishing.

This instrument amends the Fisheries (Amendment) (EU Exit) Regulations 2019 in order to equip the Northern Ireland and UK Governments with powers to enforce EU legislation that will apply in Northern Ireland. It will also amend regulations concerning sustainable and traceable fishing to reflect the direct application of EU law in Northern Ireland and allow the UK to fulfil its obligations under the International Commission for the Conservation of Atlantic Tunas—ICCAT—and the Commission for the Conservation of Antarctic Marine Living Resources, or CCAMLR. To clarify, these changes do not reflect a change in policy. The UK will continue to submit the same level of information to the ICCAT and CCAMLR secretariats required by these international agreements, to which the UK is an independent contracting party.

This statutory instrument applies certain aspects of retained EU law relating to IUU fishing to Northern Ireland, which is necessary to ensure the UK is able to comply with its obligations under the PSMA once it accedes to that agreement after the transition period. The PSMA requires the UK to apply controls to non-UK vessels; this legislation serves to implement that requirement in relation to EU vessels landing in Northern Ireland. The PSMA does not require the UK to apply controls to vessels registered in the UK.

The instruments make amendments that remove previous amendments to the retained EU law versions of regulations implementing the European Maritime and Fisheries Fund—the EMFF. I should say that ClientEarth expressed a concern about a gap in legislative powers. However, I assure your Lordships that this is not the case. The withdrawal agreement contains specific rules that will apply to the EMFF during the period when the fund will be wound up and closed, ensuring that there are consistent rules in place to manage payments to the sector. Furthermore, the Fisheries Act 2020 includes a financial assistance power that will govern any future domestic scheme. A further statutory instrument will be brought forward in spring 2021 to detail any domestic plans.

These instruments also make other minor operability and clarifying amendments to retained EU law, ensuring that the law can function effectively in the United Kingdom after the end of the transition period. These instruments do not make amendments that represent any changes in fisheries management policy. I commend them to the Committee.

My Lords, I am once again grateful to my noble friend for these important regulations, which, as he will recall, cover a lot of the ground we debated at the time of the Fisheries Act, but put meat on the bones. Taking the fisheries regulations in turn and looking at the first set in the order in which my noble friend took them, it is obviously a matter of note that we will no longer be part of and therefore cannot request or receive advice from the Scientific, Technical and Economic Committee for Fisheries. Will there be a gap between our receiving that advice and the new regime to which he referred coming into place?

I am sure that my noble friend will expect me to ask the question that I ask on every occasion we discuss fisheries. He has said on many occasions that we will continue to support the International Council for the Exploration of the Sea. Has the memorandum of understanding with ICES been signed? If so, that is great, but on what date? If not, when does he expect it to be signed? Can he confirm that the resources and budget that the Government will allocate matches what we are already paying? I understand that we are one of the major contributors to ICES: we contribute between 13% and 16% of its total budget. What is more important to me is that my noble friend stated—I welcome this—that, going forward, all our proposals will be based on scientifically robust evidence. I can think of no better body to subscribe to than that one. It would be very helpful if he could confirm that.

I know that ClientEarth and others have expressed concern about the first set of regulations, saying that it might weaken requirements in relation to scientific information and research surveys, sustainability of stocks and reporting. I hope that my noble friend will take this opportunity to put our minds at rest by saying that that is not the case. He went on to say that there will be a new form of financial assistance coming forward from the Government—I presume in relation to both regulations. Can he say in outline what he thinks that financial assistance will look like and who will pay for it? Are the Government considering moving towards an industry-paying basis? If that is the case, I make a plea that is in the form of a levy into a central fund so that there is some distance between industry paying and the resources being taken out at the other end.

It would also be helpful to know the type of activities and schemes that will be funded and, once again to put my mind at rest, to know that there will not be a gap between the level of funding to date and the new funding schemes coming into place. We reach the end of the transition period at the end of this month and my noble friend said that the plans will not come forward until the first quarter of next year. I would be most grateful for any illumination on that.

If I have understood correctly, the second instrument may remove our requirements under and support for certain international agreements. My noble friend will recall that, on many occasions during the passage of the Fisheries Act, I asked the Government to repeat their commitment to international obligations, most of which seemed to stem from the Johannesburg convention in 2002. It would be helpful to know that that co-operation with other countries on marine and fisheries post Brexit—post the end of the transition period on 31 December—will continue. It is obvious that fish do not respect boundaries; we need a commitment to international co-operation in that regard.

I share the concern expressed by many environmental groups that the instrument removes our membership of the Scientific, Technical and Economic Committee for Fisheries. To what extent will discards have a role to play? I quite understand that fishermen were keen to be rid of the landing obligation; during the passage of the then Fisheries Bill, my noble friend confirmed that it would be removed. I refer to paragraph 42 of the 33rd report of the Secondary Legislation Scrutiny Committee, which has been most helpful in preparing for today’s debate. It states that there will be a requirement for the UK

“to impose controls on all non-UK vessels, including those flying the flag of EU Member States. According to Defra, these controls include requirements to use designated ports, to obtain authorisation prior to using ports and to submit certain documents in advance of using ports as well as a regime of inspection.”

Will discards feature here or have we lost the landing obligation completely? Who will be required to enforce those controls? Concern was expressed during the Bill’s passage that we were losing access. It would be interesting to know how many fisheries vessels and other vessels of marine organisations will be on standby to implement completely the new policy to which the Government have committed.

If the landing obligation has gone, can my noble friend put my mind at rest that the replacement will offer an equivalent level of environmental protection to prevent illegal by-catch and overfishing? Will Regulation 7(7) of the first instrument ensure the sustainable management of fish stocks and that it is not threatened? Can my noble friend the Minister confirm that the total allowable catches will be set in line with sustainable levels at the end of the transition period this month? Also, under Regulation 11(5), can he confirm that any future UK financial assistance will be given only to operators that comply with fisheries management rules, including those on sustainability under existing EU law?

On both instruments, we will have the opportunity to ensure that any EU flag state that flies into our ports will meet all the obligations required of them. If we are losing the landing obligation, it is important to know that illegal discharges will be stopped and that by-catch will be monitored in the most efficient way possible. With those remarks, I am grateful to have had the opportunity to discuss the two regulations before us.

My Lords, it is a regular occurrence that I follow the noble Baroness, Lady McIntosh. Her knowledge of this area is absolutely excellent. I thank the Minister and his officials for having offered to meet before this session; regrettably, I could not do so because of other parliamentary business.

One of the general points to make first, coming back to what the noble Baroness, Lady McIntosh, was saying, is that we are only 29 days away from the common fisheries policy regime and all the regulations around it ending. I realise that most of those will continue, but one of the great occasions of Brussels was the Fisheries Ministers’ bun-fight before Christmas, when they all sorted out TACs and quotas, and did deals around the scientific evidence. We have got better in recent years at recognising the scientific evidence. I do not understand what quotas UK fishers will be operating to from 1 January. The fishing industry does not cease operating for a new year, so I would be interested to hear from the Minister exactly what the rules will be for quotas by species and how they will be distributed. This is an immediate problem.

I hope that the noble Baroness, Lady McIntosh, is not correct about the landing obligation and discards ban. I understand that the Government will keep to their undertaking. The first of these regulations changes the demersal discard plans slightly in terms of some of the exemptions, but I would be very concerned if the discard ban did not continue. The Government have very much promoted it within the European Union and the common fisheries policy, through correct pressure from the public, and I hope that it will continue. I will come back to the discard ban in a while.

The sub-committee that I chair has always been pleased to hear that the Government intend to continue their relationship with the International Council for the Exploration of the Sea. This is an important body and it would make no sense for us to operate a separate system from those that fish in the same waters and fish the same stocks as we do. I welcome that, but I look forward to the clarifications on detail that the noble Baroness, Lady McIntosh, asked of the Minister.

I entirely understand why the Government will remove references to the European Union Scientific, Technical and Economic Committee for Fisheries from the legislation, as we are clearly out of the common fisheries policy now. But I would be interested to understand in more detail from the Minister how or if that is likely to be replaced. Does ICES give enough information and scientific advice for decisions to be made? I suspect that it does not. I would be concerned if Cefas, which the Minister mentioned, took on this role because, although I greatly admire the work that Cefas does, it is not an independent body; it is part of the Defra family. Therefore, like all Defra bodies and other public bodies, it is financed directly by a department and is not necessarily completely independent in its views.

Although I understand that the Government must, rightly, come out of that organisation, I would be very concerned if we did not still swap data on a voluntary basis. Not to do so would seem to show a rather dog-in-the-manger attitude. So I ask the Minister whether he and his officials will open a dialogue, so that we can still share that scientific debate and information, as many of the fish discussed by that committee are shared stocks. We would hope to have a reciprocal basis as well. It would be a great shame if that relationship did not continue, at least on an informal and voluntary basis. Needless to say, if you want to solve the data issue, remote electronic monitoring is the way to do it. Data is one of the key pluses of that technology.

I move back now to the landing obligation. There is some change to the demersal regulations or exemptions in terms of the ban. Apart from the Government’s commitment to this, which I hope the Minister will confirm, I ask whether it is working at all. In the two reports that my committee did, we found that it had made very little difference to either the EU 27 members—and certainly those in the littoral states of the North Sea and the Channel—or the United Kingdom. I would be interested to hear from the Minister whether the department feels that the landing obligation and discards ban has made any difference yet to the working practices of the industry.

I very much welcome the Government’s call for evidence on remote electronic monitoring. That call ended at the beginning of this month. Perhaps the Minister could tell us how many people or organisations submitted evidence to it and when he anticipates the next consultation on REM will start.

One of the things that will happen with single market rules, with us coming out of the common fisheries policy—although we have built a framework in the Fisheries Act—is that we can have divergence between the nations of the United Kingdom. I would be interested in how quickly the Minister feels there will be divergence and how it will be treated or worked around by the Government and the devolved authorities.

I welcome how the Government have, on a number of occasions, reconfirmed to the committee that they will operate a similar scheme to the EMFF, but when will it start? It is very important to the industry. The EMFF is not a large fund—it is small in comparison with many other EU structural funds—but it is well targeted and focused on making a difference, particularly to smaller fishing communities and fleets. So when will that fund be up and running?

Lastly, I admit that I find Northern Ireland fisheries incredibly difficult to understand, but I would like to understand from the Minister whether, when a Northern Ireland fishing vessel lands in the Republic of Ireland or back in Great Britain, its catch is treated as a UK or an EU catch. What are the implications of that for any future tariffs, quotas or phytosanitary regulations? Those questions take me through everything I need to say.

My Lords, I thank the Minister for his introduction and for his helpful briefing beforehand. It felt very strange reading the first SI, as I felt transported to a bygone age, long before all our efforts to produce the Fisheries Act and before an anticipated announcement with the EU on post-transition trade, which will of course have a major impact on future fisheries provision.

The first SI refers to a targeted consultation with key stakeholders on the Fisheries White Paper that took place in 2018, as though the last couple of years had not happened. I know from our briefing that this SI has been in development for some time and is necessary partly to incorporate changes to EU regulations that have occurred this year. So, given that some of the references in the SI are rather out of date, could the Minister clarify when exactly it was drafted, why it was not introduced before now and why it makes no reference to the impact of the Fisheries Act? We would have thought that would have had at least some impact on the details enclosed in it. It would help—to echo points raised by other noble Lords—if the Minister could clarify when he sees our legislative framework fully transitioning from the common fisheries policy to our ambition as an independent coastal state, as set out in the Fisheries Act. We seem to be treading water rather at the current time.

The Minister referred to ClientEarth’s submission to the Secondary Legislation Scrutiny Committee about the potential weakening of requirements in relation to scientific information and research surveys, sustainability of stocks and reporting. Again, his point was echoed by other noble Lords. It suggests that the detailed reporting requirements contained in EU law have not been replicated in this SI. I would be grateful if the Minister could address this.

In the Defra response to ClientEarth, the department says that it

“will comply with all of its reporting and data sharing requirements under the CCAMLR Scheme.”

Are these reporting requirements indeed equivalent to those in the EU? Are the mechanisms to begin that reporting from 1 January in place? Is the information published in a publicly available format? Will the Government continue to exchange information with EU colleagues, at least on an informal basis, as suggested by the noble Lord, Lord Teverson?

The Secondary Legislation Scrutiny Committee talked about a lack of clarity around the direction of future policy. Can the Minister give an indication of when the department intends to make more detailed policy announcements and when we will see the legislation to back that up? The SLSC drew particular attention to the issue of

“financial assistance for rewarding or deterring behaviour related to sustainability.”

I echo the specific questions of detail asked by the noble Baroness, Lady McIntosh, in this regard. How will the application of financial assistance work in practice? Defra says that this will be included in a separate SI. To clarify: is that the regulation that the Minister referred to in his opening remarks—the one to be published in the spring—or a separate one? He is looking at me quizzically so perhaps it is the latter.

The second SI focuses on the application of the Northern Ireland protocol. Like the noble Lord, Lord Teverson, I have struggled somewhat with some of the fishing implications of the protocol, but we are beginning to work our way through them. The SI explains that the UK intends to accede to the multilateral Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing—the PSMA. Once the UK joins the PSMA, it will be required to impose controls on all non-UK vessels. The Explanatory Note states:

“The controls include: a requirement to use designated ports; a requirement to obtain authorisation prior to using ports; requirements to submit certain documents in advance of using ports; and a regime of inspection.”

What will be the practical difference in the implementation of the PSMA rules on Northern Ireland and GB fishers? How will it differ for each of those groups? Does a list of designated ports already exist? If so, where is it published? Who will be responsible for imposing the regime of inspection and controls? Will it include the British Navy?

The Explanatory Memorandum states:

“There is no, or no significant, impact on business”.

However, the regulations significantly alter the fishing rights of and controls on Northern Ireland and GB fishers. Were they consulted on the new requirements? If so, are they content with them? Do those in the different categories understand the different rights and responsibilities that they will have in future? Would the Minister like to comment on what he sees as being the consequences in real terms? In our earlier briefing, the Minister said, rather colloquially, that he thought that it meant that Northern Ireland fishers will be able to “face both ways”. Can he clarify what he meant by that? This may be a rare occasion when Northern Ireland actually benefits from the Northern Ireland protocol in terms of trade provision.

I do not know whether the Minister saw the recent press report that Scottish fishers on the western coast of Scotland are considering re-registering their boats in Northern Ireland ports. This would enable them to land their shellfish, most of which is destined for European markets, without paying any EU tariffs or taxes. Can the Minister that this would be perfectly legal, provided that it represented a genuine move in the place of operation? Has any further thought been given to the consequences of this? Is there a concern that it might spark a wider practice of companies switching their base of operation to Northern Ireland to avoid tariffs?

I look forward to the Minister’s response to these questions.

My Lords, I am grateful for noble Lords’ comments. A number of key questions were asked.

The first question concerns science. I stress to the noble Lords who spoke—particularly the noble Lord, Lord Teverson, and my noble friend Lady McIntosh—that this is the basis of what we need to do going forward. The UK will continue to ensure that relevant data is collected and reviewed by a replacement scientific body. The replacement UK advisory structure is in development; in the meantime, as I said in my opening remarks, we retain access. Let me also say—although I will embellish this—that our discards policy will continue to be scientifically justified. The UK fisheries administrations will also need to comply with obligations under all other legislation to ensure that our discards policy is scientifically justified, including the Fisheries Act with its scientific evidence objective.

The noble Lord, Lord Teverson, and my noble friend Lady McIntosh referred specifically to ICES. The UK has been an independent member of ICES since it was established in 1902 and will continue to play a strong role in its future. The UK will continue to set the gold standard for sustainable fishing and the protection of the marine environment around the world after the transition period ends. The MoU will be signed, ready for it to come into force on 1 January.

On funding, I repeat that the Government made a manifesto commitment to maintain funding for the sector and will replace the EMFF with new domestic schemes from 2021. The devolved Administrations will lead on their own schemes. In addition to the EMFF, we committed an additional £2 million to support health and safety projects and a further £10 million to establish the Seafood Innovation Fund; that will run until 2022.

The important issues of discard plans and the landing obligation were raised. From next year, we can, for the first time, develop a discards policy that is tailored to our marine environment and industry. In our 2018 fisheries White Paper, we were clear that the UK Government will

“continue to work towards ending the wasteful practice of fish discards”,

but challenges stemming from the EU-implemented landing obligation are widely recognised. In future, we will have the opportunity to be creative and adopt new measures outside of the current CFP toolkit to implement a workable discard ban. Sections in the Fisheries Act set out provisions that will allow us to introduce one such measure: a discard prevention charging scheme. This will provide a mechanism allowing fishers to pay for additional quota to cover any excess catch that would otherwise push them into illegal fishing.

On who is responsible for enforcing discard rules, I can reaffirm for the noble Lord, Lord Teverson, that no changes are intended. Enforcement will continue via the MMO and the relevant devolved Administration enforcement authorities.

The noble Lord, Lord Teverson, mentioned quotas. Under Section 24 of the Fisheries Act, the Secretary of State may make a determination of the UK quotas. This would usually occur in accordance with any obligations resulting from negotiations with other coastal states, but the Secretary of State could make a determination that did not flow from negotiations. Such a determination may cover fishing effort as well as quota.

On the Maritime and Fisheries Fund, while the devolved Administrations will lead on their own schemes, as I said, in England, the Government’s objectives include innovation, improving port infrastructure, boosting coastal communities and supporting the sector in adjusting to the new arrangements. As I said, England has also repurposed £5 million from its MFF scheme for Covid support in that regard.

The noble Baroness, Lady Jones of Whitchurch, raised timing and whether we were dealing with an out of date SI. It is a moot point. Changes we are making to the EU regulations that will form part of retained law will come into effect only at the end of the year, when that retained EU law begins to function. We thought that there would be no advantage in fixing these earlier. In fact, we felt that two SIs now would be appropriate, rather than perhaps multiple SIs throughout the year, particularly given the fact that parliamentary time was limited.

We had a good discussion about REM throughout the passage of what was then the Fisheries Bill. We were all on the same page. I will reply in particular to the noble Lord, Lord Teverson. There were 45 responses to the consultation. I think we all agree that the basis for REM is that it will provide many advantages, which will help us ensure that we have more sustainability.

My noble friend Lady McIntosh asked about the TAC and sustainability. Achieving healthy fish stocks is the first step to vibrant commercial and recreational fishing industries. The Fisheries Act sets out our commitments to sustainable fishing. The joint fisheries statement, which will be drafted and adopted by the UK Government and the devolved Administrations, will set out our policies to achieve the fisheries objectives set out in Section 1 of the Act. As an independent coastal state, we are committed to working closely with our partners, including the EU, Norway and the Faroe Islands, to manage shared fish stocks sustainably. The noble Lord, Lord Teverson, in particular raised that. Of course all of us in these waters need to be responsible. The UK will work with others to have vibrant fish stocks in all our waters and shared waters.

On Northern Ireland, yes, this is technical, and it took me a few readings to get what I understand to be correct. The Northern Ireland protocol recognises that a technical exercise is required to ensure that Northern Ireland fishing vessels landing into Northern Ireland are exempt from custom duties. The UK Government fully recognise the importance of the fishing industry to Northern Ireland and are clear that there should be no unacceptable new requirements.

The noble Baroness, Lady Jones of Whitchurch, asked about reporting requirements and our international obligations. They will remain the same. We will continue to report, as we have done before, as an independent coastal state, while being mindful that we can make some proper decisions from the data we all supply. PSMA requirements would be enforced by the ports into which foreign vessels land, as they are now.

I should also refer to a point that I think addresses the ClientEarth issue. As explained in the Explanatory Memorandum that accompanies the instrument, Article 138 of the withdrawal agreement provides for EU legislation relating to the 2014-20 EMFF to apply in the UK directly. By virtue of the wording of the European Union (Withdrawal) Act 2018, legislation that applies in this way is not replicated in retained EU law. As such, our amendments are simply to remove previous deficiency corrections made before the withdrawal agreement was entered into, in recognition of the fact this legislation will no longer form part of EU law.

A number of points came up on this issue, but I absolutely confirm that we have been working with interested parties and businesses to ensure that arrangements are in place across the nation and in Northern Ireland for 1 January. As I said, we are working to ensure that all is in order for 1 January. There are bound to be some further points that I will relate in more detail in a written reply. The issue of the designation of ports was raised. I am pretty confident that we will set out the list of designated ports vis-à-vis Northern Ireland by 16 December, which is a key part of that preparedness. On that basis, and with the promise of further correspondence, I beg to move.

Motion agreed.