As you all know, we are here to consider the informative bit of the Fisheries Bill. We will first consider the programme motion, which is on the amendment paper. After that we will consider a motion to enable the reporting of written evidence for publication and then a motion allowing us to deliberate in private. I call the Minister to move the programme motion.

Ordered,

That—

(1) the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 4 December) meet—

(a) at 2.00 pm on Tuesday 4 December;

(b) at 11.30 am and 2.00 pm on Thursday 6 December;

(c) at 9.25 am, 2.00 pm and 5.00 pm on Tuesday 11 December;

(d) at 11.30 am and 2.00 pm on Thursday 13 December;

(e) at 4.30 pm, 7.00 pm and 9.00 pm on Monday 17 December;

(f) at 9.25 am and 2.00 pm on Wednesday 19 December;

(2) the Committee shall hear oral evidence on Tuesday 4 December in accordance with the following Table:

(3) proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 4; Schedule 1; Clauses 5 to 13; Schedule 2; Clauses 14 to 17; Schedule 3; Clauses 18 to 28; Schedule 4; Clause 29; Schedule 5; Clauses 30 to 37; Schedule 6; Clause 38; Schedule 7; Clauses 39 to 43; new Clauses; new Schedules; remaining proceedings on the Bill;

(4) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Wednesday 19 December.—(George Eustice.)

Under the programme order, the deadline for amendments to be considered at the first line-by-line sitting of the Committee will be the rise of the House on Thursday, so if Members wish to table amendments to be considered next week in Committee, they must table them by the rise of the House on Thursday.

Resolved,

That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(George Eustice.)

Copies of written evidence that the Committee receives will be made available in the Committee Room.

Resolved,

That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(George Eustice.)

Why on earth we have agreed to potentially meet in private now, I have no clue. However, the learned Clerks know better than I. We will now move on to the interesting part of the session.

Examination of Witnesses

Bertie Armstrong and Barrie Deas gave evidence.

I am delighted to welcome the Scottish Fishermen’s Federation and the National Fisherman’s Federation Organisation to give evidence. For the sake of Hansard, will you kindly introduce yourselves before we start questions?

Bertie Armstrong: Certainly, in alphabetical order, I am Bertie Armstrong, chief executive of the Scottish Fishermen’s Federation, which is the trade association that looks after the catching sector in Scotland. It has nine constituent associations and a geographical spread. It covers some 450 fishing boat businesses from smallest to largest.

Barrie Deas: I am Barrie Deas, chief executive of the National Federation of Fishermen’s Organisations, which is the representative body for fishermen in England, Wales and Northern Ireland.

Q What have been the main shortcomings of the common fisheries policy from your perspective, and what would you hope to achieve through a domestic fisheries policy?

Bertie Armstrong: The central ill of the common fisheries policy is the matter of the distribution of catching opportunity—the so-called relative stability—which places us, from our waters, in the position of 60% of the seafood assets removed from our waters being in the hands of non-UK EU fishing nations. The relative figures for other coastal states, one of which we will become on Brexit day, are Norway 85% or thereabouts and Iceland 90%. So the primary ill is common access to our waters and statutorily giving away that amount of our natural capital.

The second ill of the CFP is that it is distant and remote, and the process is effectively moribund. It is dysfunctionally distant. It is centralised by treaty and cannot be uncentralised or regionalised to any proper extent. The Bill must seek not to replace one unworkable system with another.

Thirdly, and finally, some political elements of the CFP in terms of practical fisheries management are counterproductive and unworkable. For instance, no one wishes to discard our perfectly edible fish, but the way it is linked to the CFP will simply not work.

Barrie Deas: I very much share Bertie’s views. The essential problems with the common fisheries policy for the United Kingdom lie in its inception, which was based on the principle of equal access, and ten years later, the principle of relative stability that allocated shares that do not reflect the resources that are in our waters. The comparison is with what we would have been had we been an independent coastal state for the last 45 years, like Norway. It is a huge disparity.

We are tied into an asymmetric and exploitative arrangement. The departure of the UK from the EU and therefore from the common fisheries policy provides us with the first opportunity to break free of that. The content of the Fisheries Bill is extremely important in terms of taking the powers to control who fishes in our waters—the access arrangements—and to renegotiate the quota shares.

I very much share Bertie’s view that the common fisheries policy has been cumbersome to deal with and very remote from where the impact of the decisions are felt, which has led to a huge gulf between fairly grandiose legislation and failure at implementation level. The gulf between primary legislation and its implementation has been recognised by the Commission and in the common fisheries policy. In recent years there has been an attempt to address it by introducing an element of regionalisation. Unfortunately, the treaty of Lisbon and the introduction of co-decision making into fisheries involving the European Parliament has moved active decision making even further away from where it counts and where its effects are felt. In that sense, we have moved in the opposite direction.

Q Obviously, at the moment every part of the UK has access to each other’s waters. The Bill protects that in the first clause by having a key purpose of equal access. Are you happy with that approach?

Barrie Deas: Yes. I think there always has been the right of UK fishing vessels from any part of the country to fish anywhere in the waters. We think that is an important principle that should be retained. The NFFO has some problems with the impact of the devolution settlement on fisheries, which makes it much more complex, but the fundamental principle of equal access for UK vessels is one that we support.

Bertie Armstrong: Likewise, the Scots fleet would like to continue to be able to catch its prawns off South Shields as well as in the Fladen Ground, but we are too small. I think the central and relevant point is that there has been no arm-wrestling and no desire for regionalisation of the catching area. The heft of the UK exclusive economic zone is great because of the area and its seafood contents; it is not great in terms of home nation fleets. I do not think there is any sense in splitting it up, or any requirement to do so.

Q Finally, on the issue of a fair sharing methodology in future international negotiations, do you share the approach outlined in our White Paper, which is a move to using zonal attachment as the basis for future sharing arrangements?

Bertie Armstrong: From my point of view, in the strongest possible terms, there has to be some sort of principle for division. Given the fact that there will be access as we have access, for instance, to Norway, there will be access by European boats to UK waters. We need to be very careful not to put anything on the face of the Bill that is obstructive.

Barrie Deas: The most extreme example of the distortion in quota shares is English channel cod: the UK share is 9% and the French share is 84%. Other examples include Celtic sea haddock: our share is about 10% and the French share is 66%. Those kinds of distortion have been part and parcel of relative stability and equal access, and they need to be addressed as a matter of urgency.

The principle of zonal attachment is used in the division of quota shares between the EU and Norway, so it is already accepted by the EU in that context. Obviously, it does not work to their advantage in relation to the UK, which is why it is not unexpected that they are very unhappy about the change. The broad picture is that the principle of zonal attachment, reflecting the resources that are in the UK water, should be the basis for allocating quotas in the future, in our view.

Bertie Armstrong: May I add a practical example of the ills of not doing that? To make a discard reduction or ban, or a landing obligation, work, the fishing opportunity in the area has to resemble what is in the ocean. The great distortions of the CFP mean that you simply cannot make that work, because you get choked immediately on having caught all of one species and still having quota for another. There needs to be an underlying principle, and zonal attachment is the one that, by common sense and instinct—apart from the fact that Norway has accepted it—makes the most sense. If we approach the whole of our new role as a coastal state with the idea that common sense and sustainability are central, we will do well.

Q The Minister asked about redistribution of quota from our EU friends to UK fishers. Do you feel that there are enough powers in the Bill to give certainty about how redistribution will take place, and is redistribution a nice-to-have aim and objective, or is it something that will actually happen if it is included in the Bill?

Bertie Armstrong: The Bill in its present form enables the UK to work as a coastal state in the way that other coastal states do, so the answer to that is yes. We would be greatly comforted by the insertion into the Bill of a date of assumption of sovereignty. The self-suggesting date is the end of the transition period—the implementation period, in our parlance. In other words, the end of December 2020.

I am very sorry, but I am finding it hard to hear you, perhaps because I am a bit deaf. Would you mind speaking up a bit?

Bertie Armstrong: I will, forgive me. The date of the end of December 2020 should therefore be inserted into the Bill so there is a commitment to becoming, in practical terms, a coastal state.

Q Do you get a sense that there is a plan for how quota will be drawn down against our EU friends, rather than our having the ability to have control our waters, and then have the same quota share between UK and EU fishers?

Bertie Armstrong: There is a whole fisheries agreement laid down in the withdrawal agreement, which is yet to happen. That is the point. Your question does not indicate from whom I would seek that answer. There is a whole fisheries agreement to be negotiated. Well, we say negotiated, but you need to ask, “Who owns this place?” After Brexit, we own this place. This is the UK’s natural capital. That places a pretty strong trump in your hand of cards for the negotiation.

At one end of the spectrum of the fisheries agreement is, “None of you get in at all and fish anything,” which is absurd. At the other end of the spectrum is, “We’re going to give up and shut the fleet down. You can have at it and have the lot.” The negotiating ground is in between. We would like to see, in the fullness of time, the UK’s fishing opportunity representing zonal attachment or something close to it. That is what should be the result.

Barrie Deas: The UK will be an independent coastal state under international law. The United Nations convention on the law of the sea carries certain rights and responsibilities, including the responsibility to co-operate on the shared management of shared stocks. That is a starting point. There is a very important link between access rights and the renegotiation of quota shares. You can use the EU-Norway example as the most relevant model for future management. The UK is engaged in bilateral negotiations with the EU. That will be about setting quotas and total allowable catches at safe levels. It will also be about access arrangements for the coming year, and it will be about quota shares. That link between access and quota shares is the key to delivering a change and rebalancing of quotas to the UK, where needed. There will be a certain degree of access for European fleets—how much is to be negotiated—and there is the rebalancing of the quota shares. Those two things should be inextricably linked, and that is where our leverage lies in addressing the quota distortions that are there at the moment.

Q Okay, but there is nothing in the Bill necessarily that gives certainty about when that drawdown period will take place against it.

Witnesses indicated assent.

Q On the economic link, having fish caught under UK quota but landed in foreign ports means that the economic link between the UK quota—fish in UK waters—and the benefits to the UK is not always naturally construed. How much fish, especially from quota owned by foreign boats and caught by our EU friends, is landed in UK ports at the moment? How much should be landed, if we are to impress that an economic link should be included in the Bill?

Bertie Armstrong: It is a complicated question. We should look to other coastal states. There is great assistance in looking at other models. Iceland and Norway—to cite the pair of them again—place much stronger economic links on ownership of vessels and ownership of the stewardship of the fishing opportunity, which is less strong in the UK because of EU regulation. Everyone will know that in the late 1970s the UK attempted to apply a 75% ownership limit to foreign investment in fishing vessels and lost in the European courts because that was illegal under European law. It had to be 75% European ownership. There is an opportunity downstream to have another look at ownership.

Q But that is about ownership rather than about landing, is it not?

Bertie Armstrong: The first thing that happens if you make rules about landing is that you have a boat full of mackerel and you cannot land it until Friday, which is very prejudicial. If we are to make rules about landings which make instinctive perfect sense, to capture the economic activity into the land, we must have a sensible vision of how much volume we will need to cope with and how that will be done seasonally. Making simple rules is likely to produce more problems than it will solve. It would be more helpful to have a vision for the UK fishing industry. In the withdrawal from the EU lies the opportunity effectively to double the economic activity associated with UK fishing, including the whole of the supply chain. As long as we are ready for that, the landings will take place into the UK. We look forward to the day when all UK fishermen will want to land their fish into the UK, because we are a world seafood leader and that is where they will get their best price.

Barrie Deas: The principle is that UK quotas should bring proportionate benefits to the UK. That is the starting point. The question is how you do that. The obligation to land a certain proportion of the fish is there in the current arrangements—the current economic link—but there are other options to meet that question of equivalence. Requiring all fish to be landed in the UK would mean an intervention in the market, because if there are economic benefits to landing particular species abroad where there is higher value, there is obviously an economic purpose to doing it that way, so we have to be careful about that. It is right that the economic link requirements are reviewed in the new circumstances, but I quite like the idea of having the flexibility, as long as there is an equivalence, and it is all linked back to the fundamental principle that UK quotas should bring proportionate benefit to the UK.

Q I have two questions. Do you think the Bill will lead to increased fishing opportunities both for new entrants and for what until now have been called the under-10s, although I think it is important we try to get away from that descriptor? Picking up on the Minister’s comments about equal allocation across all UK fisheries for all UK boats, do you think that principle lies comfortably with the sustainable management of individual fisheries? I say that because there is a concern that it is difficult to do that when you get boats from other parts of the UK coming into waters off the East Anglian coast, and not only off the East Anglian coast. It is a concern that has been raised with me about waters off the north-east. Yesterday I was hearing about problems with managing cuttlefish down off the south-west where this problem had arisen. I would welcome both your views on those two issues.

Barrie Deas: On increased fishing opportunities and how they could be allocated, for a number of reasons, including case law in the English courts, but also the stewardship that comes along with rights of tenure, which have been an important factor in stabilising our fisheries over the last 20 years, our federation takes the view that for existing quota it should remain the same, but for additional quota we think there is a conversation to be had on the most appropriate use of that. There is a range of options.

Perhaps we are being a bit narrow here. You alluded to the division line at under-10, which has, I think, caused distortions in the fleet and unintended consequences —you have a cohort of high-catching under-10s, sometimes called rule beaters or super-under-10s, that have kind of distorted fishing patterns. There is recognition that we need to move beyond that now. In that context, there is an issue about how you define genuine small boats—genuine low-impact vessels—and I accept that. My organisation would be very interested in taking them out of the quota system altogether. That does not mean not taking into account their contribution to mortality. In a sense, it is a reversion to what we had in the early days of under-10 metre management, where sufficient quota was allocated and we did not have to have monthly quotas for that class of vessels. There is a very interesting conversation to be had about the future and new entrants and how the genuine low-impact fleets fit into that.

Equal access has been an important principle and there are dissatisfactions wherever you have a nomadic fleet arriving on the doorstep of a local fishery. That would be true of our boats fishing in bits of Scotland, I suppose, and certainly you hear these kinds of things about Scottish boats fishing off the Northumbrian coast or down in the south-west. Fishermen are competitive. They are competing with each other as well as with foreign fisherman. That is the context in which you have to situate that particular issue.

Bertie Armstrong: Mr Aldous, your question was about new entrants in under-10s. The enabler for a better deal for new entrants in under-10s will be the uplift in opportunity for fishing that comes with Brexit; otherwise, we presumably have fixed the problems already with the fishing opportunity available. The situation is different as you go around the coast. The small-vessel fleet in Scotland has a different character and tends to use creels, or pots, to catch shellfish—that is a great generalisation; there are others—so there is a different set of problems. It is generally inshore and small scale and is therefore best sorted out locally, but I think there will be a better deal for all with the uplift in opportunity.

There is another abiding principle here. If you are going to make alterations to arrangements for fishing, the fish need to be there to be caught. It is one thing to give someone tons of fish; it is quite another if the fish are not there in prime condition with a business plan for getting them landed and into a logistics chain. Much is made of the big mackerel catchers in the pelagic fleet, and much is made of rather lurid statistics about what percentage is held by what number. You cannot catch 250,000 tonnes of mackerel in winter, 100 miles to the west of the British Isles, with hand line under-10s—you simply cannot. But a few hundred tonnes to the hand line under-10s, provided the local arrangements pay attention to making sure there is a whole logistics chain and they are going to get that fish to a place where somebody wants it, is where the opportunity lies.

My final input, on behalf of slightly larger-scale fishing, is: be careful what you mean by low impact. The carbon footprint per kilogram of fish of a pelagic trawler catching mackerel is very much smaller than any other form of fishing, because you catch volume efficiently and quickly. There are many aspects to this.

In answer to the question, yes, there is extra opportunity, but there has to be extra opportunity to distribute. The problems are largely regional and should be sorted out regionally. We need to be careful not to place excessive detail on the face of the Bill. I suggest that a lot of this is best done by secondary legislation.

Q Mr Armstrong, in answer to an earlier question you suggested that we might see a date of what you called sovereignty over quotas and waters. You suggested that the end of the implementation period as it is now—December 2020—was the ideal date. How does that square with the fact that there may be a backstop arrangement and the Prime Minister has said that, depending on what happens, we might need to extend the implementation period? How would inserting a date in the Bill work with the other flexibilities that are still to be resolved?

Bertie Armstrong: I would wish to dispense with the flexibility to extend for fishing the implementation period by placing a date on the face of the Bill. There will undoubtedly be some resistance, but that would not be up to me. That is why we would like to see that in there. We are on record as being less than completely happy that the implementation period applies to fishing at all, because legal sovereignty over the waters and the resource therein comes on Brexit day. However, we are where we are, and we recognise that the withdrawal agreement has compromises all over the place. We therefore, with reluctance, accepted the implementation period compromise, but we would not wish to see it extended at all.

The backstop has been much described, particularly over the last few days. Clarity is helpful on what happens. There are two preconditions: if the backstop clicks in and is applied and there is no fisheries agreement in place by that stage, and there is no prescription of what is in the fisheries agreement, tariffs will apply. Fishing will be cherry-picked out of the trade arrangements. Tariffs will apply to fish—which, by the way, the Scottish Government study indicates would not necessarily be a terminal problem—and access to our waters for other UK fleets would cease. So it would be a mess of large proportions and we are rather hoping that it would not apply.

I see some puzzlement about the lack of access for anybody else. If there is no fisheries agreement—and there is precedent on this, with EU-Norway arrangements, for instance—there is no access to each other’s waters.

May I lay down a red line, particularly for our detailed consideration of the Bill, starting next week? The backstop and all that is not in the Bill. Those are, of course, important matters and they do have some relevance to and bearing on it, but our purpose today—and, indeed, during the process of consideration in detail, as of next week—is to consider in detail the words that are on the face of the Bill. Therefore, next week I will take a tough line on the broader political considerations and say that they are, I am afraid, simply out of order. They are important, but let us focus on the Bill.

Q I accept your guidance, Mr Gray, but clearly there is the suggestion of the clear date versus how that would fit into the bigger picture. It is the same thing when we talk about future quota allocations and how that will work. Mr Armstrong mentioned the issue of tariffs in his answer. In yesterday’s questions to the Attorney General he said that the backstop arrangements meant that Northern Ireland would have tariff-free access to the EU and tariff-free access to Great Britain, whereas no other market will have that. Is that a concern, and how could that be addressed in this Bill?

Bertie Armstrong: To be honest, that is not where our focus lies at this point in time; it is on making sure that the Bill as an enabler of—I will use the phrase “the sea of opportunity”—makes it on to the statute book, rather than on the details of what does and does not happen to Northern Ireland in the event of a backstop.

Going back to Mr Pollard’s question about UK vessels landing elsewhere, for example Norway, can you say a little about what motivates fishermen to land elsewhere? What changes are required in our ports or onshore infrastructure to make landing in the UK more attractive, and is that covered by the Bill?

Barrie Deas: Money. That’s it, really. [Laughter] I had better say a bit more. Over the last 20 years, markets for fish have developed and diversified. Peterhead has become the pre-eminent white fish port in Europe. Flat fish tends to go to Urk in the Netherlands. South-west ports are sending prime, high-value fish to the continent, and then there is the shellfish market. From time to time there will be price differentials. Also, it can reflect where the vessel is fishing: for example, it might make sense to go to Denmark and land for one trip and then land back into Peterhead for the next, or to land into France. Fishermen are commercial animals. They are very much driven by catching fish but also by marketing fish, and price is key.

Bertie Armstrong: I would reinforce that. At the slight risk of crossing the red line again, and as I keep saying, the elevation of the UK to the world stage would mean that, in the simple arithmetic of volume and value, we would overtake Iceland. It would allow us the sort of conditions that our own processing industry would want to entice not only all our own landings but perhaps some from others as well. However, it is a matter of commerce and business, generally.

Q So there is the favourable price that you might get from landing elsewhere, but is there something about the ports or the processing facilities, in Norway for example, that the UK needs to catch up on? Could we do something through the Bill to help improve that? When you mentioned money, I thought you were talking about investment in our onshore facilities as well as the price on the market.

Barrie Deas: Over time, and with rebalanced quotas, there would be opportunities, because of the greater throughput, to look again at all these issues. I am not sure what you could put in the Bill particularly that would be helpful, given that this is a dynamic commercial issue that you are addressing. I certainly think that it is an important issue, but I would have to be persuaded that the Bill is the right place to address it.

Q Good morning, gentleman. I do not want to dwell on the date, but I think it will be an important part of our discussions when we come to line-by-line scrutiny. Your suggestion is that the date would be 31 December 2020, which is the currently envisaged end of the transitional period. You are resistant to any idea that we should extend the transitional period. How do you see fisheries management working from 29 March 2019 to 31 December 2020?

Bertie Armstrong: The provisions, as we understand it, are that we will act as a coastal state-designate during that period, participating fully in the coastal state arrangements that will set the catching opportunity for 2021.

Q What does that mean in practical terms?

Bertie Armstrong: It would mean that, between now and then, there would need to be the construction of coastal state arrangements that include the United Kingdom as a stand-alone coastal state, and for the United Kingdom to participate in that. This is probably in 2020, but not before.

Q That is the December Fisheries Council in 2020 anticipating the conclusion of the transitional period. You say that that is the position as you understand it. Is that on the basis of your discussions with the Government?

Bertie Armstrong: It is also as laid down in the withdrawal agreement. Happen as may, it turned up in a paragraph of the legal advice yesterday, which was not actually advice on what we ought to do on fisheries but was a repeat of what was in the withdrawal agreement.

Barrie Deas: The December Council later this month will be the last time that the UK participates as a member state. The whole apparatus of European decision making will then not apply to us; we will not have MEPs and we will not be involved in any of the decision-making forums. The transitional period is a little bit anomalous and strange, because the UK will be part of the EU delegation to EU-Norway next year but will not be in the room for co-ordination. There is some uncertainty about how that will work in practice, and we need clarity on that. I agree with Bertie that an implication of the withdrawal agreement is that in autumn or December 2020, there will be bilateral or trilateral negotiations with Norway that will set the quotas, quota shares and access arrangements for 2021. That is my understanding.

Q That is in 2020, but not in 2019.

Barrie Deas: No—in 2019 we are in the implementation period. It is slightly anomalous that there is a lack of clarity about how that will work in practice. It is governed by a good faith clause for both parties, but it is still uncertain how that would work in practice.

Q For the purposes of what would currently be the divvying up of whatever comes out of the EU-Norway arrangements, what is our status at the December Council in 2020? Are we there as the start of a new bilateral—is that how you understand it?

Bertie Armstrong: I know for a fact that you understand this, Mr Carmichael, but there is a point of principle that is worth mentioning. The December Council is something of a distortion of importance, because effectively it takes the pie piece—the amount of opportunity that was agreed in coastal states arrangements for the EU—and, in terms of relative stability, it fiddles about with the details and ratifies them. That will be of no real interest to us in times to come. This year it will be of extreme importance, but in times to come we will be involved in the rather more important division of the north-east Atlantic fishing opportunity. As an owner of a very significant piece of the north-east Atlantic, we will genuinely be at the top table, to use a hackneyed phrase. The December Council is not any form of top table; it is arm wrestling inside the EU for an already settled fishing opportunity.

Q We anticipate that this year we will have a difficult December Council, given the science and what we know about North sea cod and other species. In my experience, these years very rarely come along in isolation. I think the anxiety is about how we are able to influence these decisions. The decisions that were made back in 2002 and 2003 about cod stocks in the North sea were central to the prosperity of the fleet. If we are not at the table in 2019 and 2020, how will we avoid becoming the dish of the day?

Barrie Deas: Those concerns have to be there for the negotiations in 2019 for 2020. Science is going to be the basis of the decisions on total allowable catches. There is the good faith clause, but we do not understand the mechanics of how the UK will be consulted as we have been promised. However, 2020 for 2021 is an entirely different scenario: all other things being equal, the UK will be negotiating as an independent coastal state and will carry a great deal more political weight as a result.

Q Have the Government ever given you any explanation of why they put us in this position in the first place? They were not going to give in, but then they gave in. Did they tell you why?

Barrie Deas: I think the answer is that a transition or implementation period was agreed to give business a chance to adjust to leaving the EU—

Q But why was fisheries put in that?

Barrie Deas: The whole acquis—the whole body of EU law, including fisheries law—applies. As much as we would have liked to sidestep that, the Government made a calculation that that was not available or realistic.

Bertie Armstrong: Clearly the industry was not in the room when that happened. As I understand it, there would have been no agreement and it would have been stuck with four or five nations. Of the 27, half do not have a coastline. These pressures apply to a maximum of 11, but more like four or five, nations—

Q So it was in order to get a deal?

Mr Carmichael, that is your last question. We are all drifting beyond the Bill. We have four questioners and 10 minutes to get them in.

Bertie Armstrong: There is certainly a matter of relevance, although it remains subjective rather than objective. If we become dish of the day, there will be a time when we are a sovereign state with a complete grip on what happens in our waters. It would therefore be unwise for short-term gain to be exacted at that stage, providing that the Government of the day retained their backbone.

Indeed.

Q Mr Armstrong, the Scottish Fishermen’s Federation suggests that you represent every owner and skipper from Solway to Shetland. For the record, could you tell us who you represent and about the diversity of the fishing community in Scotland?

Bertie Armstrong: We represent the 450 businesses that are responsible for most of the quota species. For the non-quota species, a large number of vessels are one handed or two handed. They belong to no associations—that is not being dismissive, but if you are a one-handed fisherman, you do not have much time for politicking. We have the whole of the Shetland Shellfish Management Organisation and the whole of the Orkney Fisheries Association, but not the Western Isles Fisherman’s Association or some of the smaller associations down in the Clyde.

Q Clause 1(7) on page 2 and clause 10 on page 6 talk about the location of home ports and how licences will be administered by Scottish Ministers or by a Northern Ireland department. As regards your membership, how important is it that, within the confines of the Bill, there is a level-playing field across the United Kingdom post-Brexit, and that one part of the UK is not given a competitive advantage over another in fishing?

Bertie Armstrong: I am not seeing much in the Bill that awards that. Be aware of the stats here—I am about to make a statement of fact, not opinion. About 60% to 65% of the UK’s fish landings by volume and value come from the Scottish fleet. That is just an observation of the facts. With access to waters, the position of the ports, where the fish live, and a couple of decades of contracting and rationalising the industry, we have ended up with quite a lot of concentration in the core areas of Scotland.

I am aware—I am very concerned—that there should be a level-playing field and no prejudice against any area, but I am comforted by the fact that business will take care of that, as long as there is nothing obstructive. The whole point of the future is the increased economic activity, which business will take care of.

Q So you have no concerns that any one part of the United Kingdom may be given a competitive advantage against another post-Brexit?

Bertie Armstrong: It would be helpful if you framed the question as to which part you think is prejudicial.

Q If Northern Ireland were given preferential treatment ahead of Scotland, Wales and an English fleet.

Bertie Armstrong: We are back to the backstop, and that will kick in only if the backstop kicks in. Anybody’s guess around this room is as good as anybody else’s guess.

We are drifting a little. I am keen to extract maximum benefit from our witnesses. We have three more questioners, so I will move on, if you do not mind, Brendan.

Q Gentlemen, notwithstanding the desire to have a date of sovereignty in the Bill, which may or may not be possible, in general terms are you content with the Bill?

Barrie Deas: Yes, I think the broad thrust of the Bill goes in the right direction. We have some concerns about particular aspects of it, but the Bill is necessary in order to give Ministers the power to set quotas, albeit in the context of international negotiations, to negotiate as an independent coastal state, to control access to our waters, and, on that basis, to renegotiate our quota shares. That is the main thrust of the Bill, and that is really important.

We also completely understand, having been within the common fisheries policy for so long and having had direct experience, that top-down, over-centralised management is not effective, sustainable management. We need the flexibility to adapt. Fisheries seem to be particularly prone to unintended consequences; you think you are doing one thing, and it generates perverse outcomes. We need to be able to address those in an agile, very prompt fashion, and the Bill contains those delegated powers. I know that there are political concerns about Henry VIII powers, and so on. I think those are valid concerns. As parliamentarians, you have a role in scrutinising secondary legislation.

We would also like to see an advisory council. They have something similar in Australia. They actually have something similar within the common fisheries policy, not that we would necessarily want to follow that particular model. An advisory council of people with experience of the industry, who understand the complexities of a highly diverse, complex industry, would be a kind of filter for legislation. We would like that counterweight, as well as parliamentary scrutiny, but we absolutely understand the need for delegated powers.

Bertie Armstrong: We met, discussed and agreed that as the common position for the two main federations in the UK. We would be a little more concerned about excessive additions to the Bill, rather than dissatisfied with the Bill as it stands.

Q Clause 19 sets out that the Secretary of State must consult devolved Administrations and the Marine Management Organisation when setting total levels of catches and days at sea. However, the clause does not define the manner or rigour of that consultation, or indeed any other form of consultation with stakeholders or interested parties. Do you feel that there could be an opportunity to enhance the Bill and clause 19 with further definition of what that should entail?

Barrie Deas: That relates to the idea of an advisory council to run new ideas through a panel of experts—people who understand the complexities and nuances. It would be advisory. We understand that the job of Ministers and fisheries managers is to manage, but we think that an advisory council could add something, as it does in other countries—I would certainly recommend looking at the Australian model. It could make recommendations and provide advice on new legislation coming through. That is one of the areas where the Bill could be tweaked in the right direction.

Bertie Armstrong: In that clause, there is the little anomaly of adding the Marine Management Organisation. It is an organisation good and true, no doubt, but if you are talking about, as Barrie has described, a council of administrations, it is rather an ill fit for the MMO. Perhaps it would be a technical adviser.

Barrie Deas: To build on that point, when you see that consent is required from the Secretary of State, Ministers for Scotland, for Northern Ireland and for Wales, and then the MMO, which is the delivery arm of the Department for Environment, Food and Rural Affairs, it does seem, as Bertie says, an anomalous situation.

I apologise to the remaining questioners, whom we have not been able to squeeze in. We have run out of time, bar a few seconds, so I shall simply say thank you very much to both witnesses for extremely useful evidence that will greatly add to our consideration of the Bill next week. Thank you very much for taking the time and trouble to come and give evidence to us this morning.

Examination of Witness

Andrew Kuyk gave evidence.

Q With no further ado, I welcome the representative of the UK Seafood Industry Alliance. Will you kindly introduce yourself for the record?

Andrew Kuyk: Thank you, Mr Gray. My name is Andrew Kuyk. I am director general of the Provision Trade Federation, which is a food trade association, but as part of that role, I also represent the UK Seafood Industry Alliance, which represents UK fish processors and traders.

Q We heard earlier about the problems with relative stability as a sharing basis. I know that in a former life you had a role in the Department for Environment, Food and Rural Affairs when things such as relative stability were set up and principles such as the Hague preference were established. Could you explain to the Committee the genesis of the existing relative stability shares and why the UK ended up with a smaller share than has seemed appropriate?

Andrew Kuyk: How long have you got?

We have until 10.55, so let us try to keep it brief.

Andrew Kuyk: This is going back into history. At the time, I was first secretary, fisheries, in the UK permanent representation in Brussels, so I was the desk officer for these negotiations. I will not go into it in too much detail, but Committee members may recall that we had already joined the EU by that stage. The common fisheries policy had to wait another four or five years; it was a lengthy and difficult negotiation. The background was that, at the time we joined, we did not have an exclusive 200-mile zone, although the concept existed. We joined the EU and became subject to what was known as the common pond. There was equal access within that, save for some coastal rights under the London convention. Also, prior to the CFP, fisheries were managed by things such as the North East Atlantic Fisheries Commission—NEAFC. There was a concept of high seas and so on. Total allowable catches and quotas, as a management instrument, were familiar, but they were not done within the EU, so we had to invent that system.

The reason why there is an apparent imbalance in some of the quota shares is that the negotiation was done with reference to what was called track record, which was the catches historically taken by the various component parts of the EU fleet. Prior to our joining, most of the fish that were relevant to our domestic market were fished off countries such as Iceland and Norway. We had what then was our distant water fleet—large vessels based in Hull and Grimsby that went quite far afield to get the main species on which our market depended. Therefore, our track record was on those vessels, in waters that were not immediately covered by the EU common pond.

Also at the time—this is going back some 30 years—there was not—

Mr Kuyk, I am keeping a close eye on the clock and would be most grateful if you would restrict your remarks as much as you can.

Andrew Kuyk: I will get there quickly now. The smaller vessels were not subject to logbooks and recording of catches. Our track record was good in relation to the bigger vessels, and the track record used for the decisions was going back 10 or 20 years prior to 1980. The track record for the smaller vessels was not so good. Therefore, one of the reasons why the quota shares do not necessarily reflect current realities is that they were backward-looking and based on partial data. That is the short answer to your question, Minister.

Q Thank you. Now I fast-forward to your current role. Most of your members import large quantities of cod, predominantly, from Iceland, Norway and even, I think, Russia, Finland and the Barents sea. Can you explain the nature of the preferential trade agreements we have with Iceland and Norway, and also the process of autonomous tariff rate quotas for other countries?

Andrew Kuyk: Briefly, for the benefit of the Committee, we have what I term the supply paradox. Roughly two thirds of what we eat in this country, we import, and a lot of that is not from the EU. Some 80% of what is caught by UK vessels is exported, mainly to the EU. The reasons for that are largely to do with consumer choice. The main species consumed in the UK are cod, salmon, haddock, tuna, shrimps and prawns. Obviously, the tuna and most of the shrimps and prawns are not available in UK or EU waters. The salmon is largely aquaculture. On species such as cod and haddock, we are very far from self-sufficient. Our total consumption of cod in the UK is about three times the total EU TAC for cod, so we are about 10% self-sufficient in cod.

We import that raw material because that is the market demand. A lot of that does not come from the EU, but a lot of it comes via the EU, which complicates the trade statistics. The Minister has referred to the autonomous tariff quota system—ATQs. This system is a regulation that normally runs for three years. It recognises that the EU, not just the UK, is a deficit market in fish. That relativity—about two thirds imports—applies to the EU market as a whole, so the EU recognises that the fish to meet consumer need are not available under its jurisdiction. Although there is an external tariff, it has these autonomous tariff quotas. Specified quantities are admitted, either tariff-free or at a reduced tariff, and they are negotiated on a three-yearly basis. We are just about to conclude the next agreement, which will run for only two years, rather than three.

Most of those imports come in through some kind of preferential arrangement. We pay some tariffs on some of them. There is the complication of trans-shipment through the EU; some of those are landed in, say, Rotterdam, Bremerhaven or wherever and then come to us as part of free circulation within the single market.

In summary, imports come through a variety of arrangements; some come as a result of the EU-Norway agreement. Various agreements are in place that give us the benefit of significant tariff reductions. Those are necessary, because otherwise we would not be able to supply market demand in the UK.

Q Finally, leaving aside shellfish and some of the species that we export for which tariffs are quite low, and looking specifically at your members who predominantly process highly processed cod products, what proportion of their production is re-exported to the EU, and what proportion of those highly processed products is sold in the UK?

Andrew Kuyk: I am not sure I would use the term “highly processed”. Quite a lot of it is things such as bread-crumbs; I do not know whether you regard that as a high degree of processing. It is to do with the presentation. These are consumer-ready, convenience products—fillets with some kind of coating. There is a growing line in ready meals—a meal opportunity: a fish product with vegetables and a sauce, and so on. Most of those imports are for domestic consumption, because we are a deficit market. There is some re-export. I do not have an exact figure, but I would imagine it is something like 10% or 15%—not more than that. The vast majority is to supply our domestic market.

Q The Bill does not talk very much about processing. If we were to include an economic link for anyone catching fish under a UK quota, where more fish was landed in the UK ports, what would the impact of that be on the UK processing sector?

Andrew Kuyk: It is difficult to say. Again, without going too much into the history, we used to have what I would call an end-to-end processing industry in the UK, where a whole wet fish would go in one end of the factory and a product would come out of the other. Over the years, that has become rationalised and specialised, and a lot of that first-stage processing now happens elsewhere. Some of it happens on board vessels, on factory ships. Some fish—I know this sounds anomalous, but it is sheer market economics—are sent to places such as China, where they are filleted, and come back as frozen blocks. The raw material for quite a lot of our processing industry at the moment is a pre-prepared product—it is not the fish straight from the boat.

That could be a problem on two or three different levels. It is a problem and an opportunity. Clearly, if there was more domestic supply available, the UK processing industry would do its best to cope with that, but that would require investment. I was listening to the earlier session. The front end of the processing factory does exist on a smaller scale in some parts of the country, but for the people who supply the vast volumes—a sort of 80:20 thing—that front end, the lines of people physically filleting the fish and so on, does not exist any more. To reinvent that, you would need the labour, which I know is a tangential issue not to do with the Fisheries Bill, but it is a broader issue for the food industry in relation to Brexit—the supply of labour—and you need the skill. You need both the people and the skill, and you would need some physical investment in capacity, more storage, more chilling and so on.

It is not as if there is under-utilised capacity. It is a function of modern business that capacity matches throughput and the market, so there is not excess processing capacity waiting for new supplies of fish. It would have to be put in place. It would require money, people and skills. To invest the money, you would need a sound business case that could give you a projection of what your price and what your market share would be. The price, critically, would depend on what your broader trading relationship was—tariffs and currency—and what the competition was. It is quite a complex jigsaw, but the short answer is that there is not significant under-utilised capacity that, at the flick of a switch, could suddenly cope with an influx of domestically caught fish.

Thank you. I think you are underselling the success story.

Before we go on, Mr Grant looks as if he has a question on this particular point.

Q The processing industry accounts for more than 50% of those employed in the fishing industry as a whole. Is there anything in the Bill that gives you concern that the security of those 14,000-plus jobs could be affected, or is there anything that gives you concern about the supply of fish, which is essential to secure the jobs? Is there anything in the Bill that concerns you in relation to job security and the security of the supply of fish?

Andrew Kuyk: I think not, in the sense that those are not areas that are covered in the Bill. It does not cover trading relationships or the kinds of issues that you are raising. From our point of view, is that a significant omission? Not necessarily, because my understanding of the Bill is that it is a piece of framework legislation, which gives the Government the necessary tools to manage fisheries in the UK and the marine environment, in a changed legal situation where we become a sovereign coastal state. It is the tool box for the management of fisheries. It does not address those issues. Do we have concerns about those issues? Yes, we do, but I am not sure that the Bill is the appropriate place for those concerns to be addressed.

Q I was just going to say that I think you are underselling the success story of British fish processing. I think the vast majority of our jobs in fishing are in processing. If more fish were landed, there would be a commensurate increase in potential jobs in processing. Earlier, you mentioned statistics about how much fish we export and how much fish we import, because there does seem to be an imbalance there. I do not think it is widely understood that we mainly export the fish we catch and import the fish we eat.

Andrew Kuyk: It is because they are not the same species.

Q Exactly. What are the complications? What situations would you want referenced in the Bill to ensure that there is easy and free trade in those fish products? I imagine that any tariff could have quite an impact on the level of trade across our boundary. Is there anything that needs to be included in the Bill to give fish processors the confidence that they need to invest in more facilities in UK ports and elsewhere?

Andrew Kuyk: I am not a parliamentary draughtsman, and I am not sure it is relevant to the subject of the Bill. I suppose it would be possible for the Government to include a trade section in the Bill. One of the things that unites the people I represent and your previous witnesses is that we do not think there should be a link between trade, access to waters and quotas. We think those are separate issues. I know, Mr Gray, that you do not want to go too near Brexit and the backstop, but there is a relevance, given that in the backstop you have a carve-out in article 6 of the Northern Ireland protocol, which exempts fish and fishery products from the single customs territory that would otherwise apply in the backstop, so there is the potential for tariffs to be imposed on UK exports.

To recap, the main things we catch are things like herring, mackerel and shellfish, for which there is not great demand on our domestic market—people prefer cod, tuna and salmon—but there is a good market in the EU. In that succession of hypotheses if there is not an agreement and we come into the backstop, UK exports would potentially face significant tariff barriers. There may be opportunities elsewhere, but that would have a significant impact on the trade. I genuinely do not know how you would guard against that in the Fisheries Bill.

In terms of our access to the raw materials we need, we have the ATQ system and the benefit of some EU trade agreements with third countries. Again, I do not know how you make a reserve carve-out and preserve that position in the Fisheries Bill. That would be our aspiration. As processors, we want free and frictionless trade, like any other part of the food industry. That is our headline message: free and frictionless trade. The deal on the table—the political declaration—holds out the prospect of free trade. That would be very good.

The friction will depend on the degree of regulatory alignment. Fish fall into the category of products of animal origin, to which certain special rules apply in the EU. As a third country, things would have to go through a border inspection post, and so on. Clearly, for a highly perishable fresh product, any increase in the degree of inspection control is potentially detrimental if it leads to delay. Even if the product is not spoiled, its commercial quality and its value will have reduced.

We have 10 minutes for five questions. Let us be quick.

Q You said that 80% of our exports go to the EU.

Andrew Kuyk: We export 80% of what we catch. The majority of that goes to the EU.

Q Is there any scope for increasing exports outside the EU?

Andrew Kuyk: That is not really within my area of responsibility, because we are processors and traders. Quite a lot of that is exported as fish; it is not processed. You could argue from first principles that, as a UK industry, we should be getting more added value from that. Some of that fish is landed directly in EU ports. Although there is a market for that, you could argue that there would be greater economic benefit if we could get some of that value added and export.

There clearly are markets elsewhere in the world. We are a deficit market. Just a bit of propaganda for the fish industry: fish is a healthy, nutritious product, and is a renewable resource if managed properly and sustainability. There are a lot of people in the world for whom fish is their sole source of protein. There is a big demand for fish in the global trade, so there will be opportunities there, but as in any kind of market, it depends on how competitive you are. For the sorts of export that we have at the moment, which are predominantly fresh exports, not processed products, you have obvious barriers of distance. You would have to do something to make it a product that you could sell further afield. There is potential there, but going back to my earlier point it would require investment and to make the investment there has to be a sound business case.

Q The Faroe Isles require boats fishing in their waters to land their catches in their ports, therefore benefitting their fish processing industry. Do you envisage similar provisions in the Bill to make that arrangement for Scottish ports?

Andrew Kuyk: I think that harks back to an earlier question. There is no surplus processing capacity to do that at the moment. You could legislate for what people have to do, in terms of where they land things, but I do not think you can legislate for how the processing industry or investors would respond to that opportunity. They might or they might not.

Q As a supplementary, clause 28 mentions a grant scheme, which may be an opportunity.

Andrew Kuyk: Clearly, that would help solve the investment problem. Again, it would not be for me to pronounce on the use of public funds in that way for a particular sector of a particular industry, but if the Government chose to make grants available to do that, clearly that would help the business case for those kinds of investment.

Q I have anecdotal evidence that Dutch fishermen are currently catching about 80% of their small pelagic species in UK waters, and about 90% of that is being exported, with minimal processing, straight to west Africa. What can we do in this country to essentially cut out the middleman and make sure that the UK fleet is able to catch, land and export straight to these third countries?

Andrew Kuyk: Again, that is straying outside my territory as representing processors and traders. Your previous witnesses would be involved in that. Without going into the history too much, the Committee will be generally aware of the ability of people to buy quota and so on; it was freely sold and it was freely acquired. That is the way that the market has operated up until now. Clearly, were more quota available it would be possible for the UK fleet to seek to exploit these value added opportunities and, as you say, to cut out the middleman.

It would not necessarily be my members who would be involved in that at the outset, because that it is not business that we are currently involved in. The people who export those pelagics are not my members; it is the large pelagic companies on the catching side of the industry. It is done with minimal processing and minimal value added. I think that is a missed opportunity for UK plc, but I am not sure how much you can legislate for that. If you provide a framework that is conducive to that, then clearly business will step in with the right incentives and will do its best to take advantage of those possibilities.

Q Going back to what you said earlier about how the majority of our exports go to the EU, do you have any data on how much we export to the EU that is just minimally processed and further exported to third countries?

Andrew Kuyk: I do not have an exact figure, but I imagine that a clear majority of that would have no or minimal processing.

Q You mentioned earlier the import of cod from the Barents sea, Russia, which is obviously outside the EU and the European economic area. What sort of friction is there in bringing that into the UK market, in comparison with what might be experienced in the future.

Andrew Kuyk: Virtually none, in the sense that quite a lot of this stuff is transshipped through other countries, as I have already explained. If it comes in to us through the tunnel there is no friction at all, as it has already entered the single market, so any formalities—border inspection and any controls—have taken place elsewhere. The same is true of some fish that comes from Norway; some of that comes overland into Sweden on lorries. It is not quite just-in-time in the same sense as in the automotive industry, but there is a narrow window—something like 48 hours maximum—for getting those lorries through and into the UK market. At the moment, that is frictionless.

Q Do we import any fish from outside EU markets?

Andrew Kuyk: Yes, and we have some stuff that is landed directly in the UK. There are well tried and trusted systems, and any necessary adaptations have already taken place. We have the facilities to cope with fish that are landed directly in the UK—from Norway, Iceland or anywhere else—because that is established trade. It is well run-in, it functions smoothly and it is not a problem. My general answer is that at the moment we do not have friction either through the EU route or directly. There are controls and rules that have to be complied with, but there are tried and trusted systems. The relevant capacities for handling at ports and for storage are all there for existing trade.

Q I have a quick question. On supply chain fairness, there have been concerns in the media about the involvement of modern slavery in the employment practices of foreign food processors. Can you give a sense of what the UK processing sector is doing to ensure that no fish in our system are processed or caught using methods of modern slavery?

Andrew Kuyk: We certainly recognise that that is an issue in global supply chains. I think that both our members and our retail customers do their utmost through due diligence and audits to try to ensure that our own supply chains do not suffer from that. This is an issue in the textile industry and others; it is not restricted to the food industry. Part of our industry’s overall corporate responsibility is not just sustainability of the resource, but ethics and employment practices. That is part of the sustainability agenda of all major processors and retailers, and we do everything that we can to ensure that poor practice is eliminated.

Q So an objective in the Bill to ensure supply chain fairness—to ensure that there are no practices like modern slavery going on—would not be an obstacle to your sector operating?

Andrew Kuyk: No. As you said, there is already modern slavery legislation. Companies over a certain size must have policies in place. We would have no difficulty with that. Obviously there are some practical issues in supply chains in terms of tracing things back and assigning responsibility. On the aquaculture side—without going off at too much of a tangent—the fish feed might come from less well-regulated fisheries, but those are known problems in the industry and people are doing all in their power to tackle them, including using the commercial power not to source from areas where there is dubious practice. There is also the EU regulation on illegal, unreported and unregulated fishing, which I know we will wish to continue. There is no social chapter in IUU, but that is part of the approach to ensure that things are sustainably and ethically sourced.

Mr Kuyk, I thank you very much for your most learned, well informed and well expressed evidence, which will be extremely useful to the Committee.

Examination of Witnesses

Paul Trebilcock and Martin Salter gave evidence.

It is a great pleasure to welcome back Mr Martin Salter, who was the Member of Parliament for Reading West for a number of years and is a dear old friend of mine, and Paul Trebilcock from the UK Association of Fish Producer Organisations. Mr Salter is from the Angling Trust. Perhaps you could kindly introduce yourselves briefly for the record.

Martin Salter: Thank you, Mr Gray—I miss our late-night train journeys back to Swindon. My name is Martin Salter, formerly of this parish and now head of campaigns for the Angling Trust, the national representative body for all forms of recreational fishing. That includes sea angling, which according to figures from the Department for Environment, Food and Rural Affairs is an industry in its own right worth £2 billion to the UK economy, generating 20,000 jobs and supporting thousands of coastal businesses.

One of the reasons we were very keen to give evidence before you is that, despite the warm words from Ministers and in the White Paper, recreational sea angling is not mentioned in the Bill, and we are hoping that you will put that right.

Paul Trebilcock: I am Paul Trebilcock, chairman of the UK Association of Fish Producer Organisations. All producer organisations in England, Wales and Northern Ireland are in our membership. Our members account for more than 40% by value of fish and shellfish landings in the UK.

Q I will start with a question for Paul Trebilcock. The very first clause of the Bill sets out a number of important environmental targets for the sustainable harvest of our marine environment. In the south-west we have particular challenges with maximum sustainable yields in a mixed fishery. Would you explain, from the point of view of fishermen in the south-west, the types of challenge we have as we try to abide by that target?

Paul Trebilcock: I should probably say at the outset that the fishing industry clearly has an interest and a priority to ensure the long-term sustainability of all our fisheries. Sustainability is at the very core of what we want from the Bill and the UK acting as an independent coastal state. However, in the words of Karl O’Brien at the Centre for Environment, Fisheries and Aquaculture Science, the MSY concept is scientifically illiterate. To have all stocks at MSY at a particular point in time is just not possible. In particular, in ultra-mixed fisheries, as we have in the south-west, there will always be ups and downs and natural variants. We are trying to manage a dynamic natural resource.

The concept of MSY is a good principle. Working towards MSY proxies on the key driver stocks is probably more practical than what we have at the moment, with an arbitrary legally binding commitment in the common fisheries policy that gives us some perverse pieces of advice. Zero TACs on stocks does not mean they will not be caught in mixed fisheries; it just means they are not taken account of in practical fisheries management. A far better way would be to have the MSY framework as an aspiration and to move towards it, and wherever possible have as many stocks as possible in that MSY range.

Q Some people say we can learn from Norway, which uses MSY and other approaches, too. Is there anything you think we can learn from that?

Paul Trebilcock: As I say, I think there are lessons to be learned from independent coastal member states such as Norway. Its approach to fisheries management takes the whole ecosystem into account and does not try just to manage stock on arbitrary numbers. There are lessons to be learned, such as using proxies or other indicators to ensure that the whole mix of stocks is going in the right direction and perhaps using the MSY as the driver for some of the key economic stocks. It is about trying to take into account that we are trying to manage a dynamic natural resource rather than something that neatly obeys some scientific modelling.

Q Mr Salter, I feel you are a bit glass half empty about the Bill. Clause 28(1)(e), which I am sure you have read, creates the powers to give financial assistance for

“the promotion or development of recreational fishing.”

That is in the Bill and it is the first time ever that we have created power to give financial assistance to angling. Is that something you welcome?

Martin Salter: What do you think, Minister? With due respect, it is obviously right and proper that the European maritime and fisheries fund makes some of it available to the commercial sector. That is fine, but you had six direct references in the White Paper to recreational fishing. One of the great failures of the common fisheries policy is the failure to recognise recreational angling as a legitimate stakeholder in the European fishery. That is a failure of the CFP that the Bill could put right. You could do that, as we state in our evidence, by putting on the face of the Bill, “The UK Government recognise recreational sea angling as a direct user and a legitimate stakeholder in the fishery.” That would be a win-win situation and it would add to the very welcome news that we are going to have access to EMFF funding.

Q I have done this job for five years. We meet every year—you are always invited ahead of the December Council, along with the commercial fishing sector, to discuss our priorities. Bass has dominated discussions, certainly in the past three years. What is it that you seek for us to do with legal powers? Obviously the Bill is about legal powers. Are you saying you would like a licensing regime for recreational anglers? In what way would you like us to legally recognise you?

Martin Salter: We, like you, are looking forward to saying goodbye to the annual horse trading that takes place at the Fisheries Council. It is worth putting on the record that, despite the reform of the CFP, some 44% of total allowable catch limits were set above scientifically recommended limits. That process is far from perfect, and it is to be welcomed that the Bill and particularly the White Paper talk in terms of world-leading fisheries management.

However, the point for politicians is that it is easy to claim that we are going to be an independent coastal state, but that does not deliver sustainable fisheries. Senegal is an independent coastal state, and its fisheries have been wiped out by super-trawlers, which are mainly European and have used their economic power to destroy the livelihoods of artisanal fishermen in independent coastal states. You will deliver sustainable fisheries management by having world-leading sustainable fisheries policy. You will deliver that by looking at the very best in the world. You should look at Norway and in particular at the United States. The Magnuson-Stevens Fishery Conservation and Management Act 1976 puts a statutory duty on the eight regional fishery councils to take action to rebuild fish stocks.

You asked what we are seeking. We would like to see on the face of the Bill a binding duty for Ministers to set total allowable catch limits in line with scientifically recommended evidence, rather than this dreadful horse trading that takes place every year at the European Fisheries Council, which is no model of sustainable fisheries management at all.

Q Do you not think that that is there in the very first clause of the Bill, in subsection (3), which states that the “precautionary objective” is to ensure that “living marine biological resources” are exploited in such a way that they are harvested

“above biomass levels capable of producing maximum sustainable yield.”

There is a legal commitment there.

Martin Salter: There is, but there is a section in the Bill about binding duties. Frankly, Minister, if I were in your shoes, I would want a binding duty. I would want to make it crystal clear that we are going to end the discredited system that has operated under the common fisheries policy and replace it with a legally backed duty to fish at sustainable levels, just as we have legally backed targets for climate change and emissions.

I am afraid I do not agree with Paul and my colleagues in the commercial catching sector about having MSY as an aspiration. Minister, you have piloted bass conservation measures more than anybody else, but usually in the face of opposition from the commercial catching sector. We have seen those conservation measures start to lead to the rebuilding of bass stocks in the UK, which is really to be commended. We need to be bold, we need to be outliers, we need to learn from the best in the world, and we need it clearly and simply on the face of the Bill.

Q Paul, at the moment, not all UK fisheries are classed as sufficiently sustainable under the UK Government’s procurement policies for the Government to buy fish from them. What needs to happen for all UK fisheries to be classed as sustainable, so the UK Government’s procurement policies enable their fish to be bought and so we can be proud that all our fisheries are sustainable?

Paul Trebilcock: I think we are well down the track on that one. Increasing numbers of UK fisheries have either achieved accreditation and are now Marine Stewardship Council-accredited, or are going through the process. Growing numbers by volume and across Scotland, England and Northern Ireland are achieving that. We are definitely moving in that direction, and the UK fishing industry is currently on a trajectory toward having all its fisheries on a sustainable footing. Contrary to Martin’s view, I think the people who will deliver a sustainable fishery and fishing industry are the fishermen themselves, those who are actively at sea. Currently, there are elements of the common fisheries policy, whether it be relative stability shares, access arrangements or some of the technical measures, that hamper the travel toward that sustainability.

The UK operating as a genuine independent coastal state, with a practical and balanced fisheries policy that takes into account all three pillars of sustainability—not just the environmental but the social and economic pillars—will in a very short space of time take the UK further down that track and ultimately toward our shared aspiration of all UK fisheries operating in a sustainable way that will allow the UK Government and anybody else to buy with a clear conscience.

Q Martin, I agree that this Bill seems to undervalue the contribution of recreational angling and fishing to the UK economy, especially our coastal communities. You mentioned in your earlier remarks that recreational angling was a key stakeholder in other jurisdictions around the world, with the US, Canada, Australia and New Zealand all recognising recreational angling as a key stakeholder. Do you think it should be included as part of this Bill that recreational angling is a key stakeholder and should be regarded as such as the new fisheries policy is introduced?

Martin Salter: Yes, thank you for that. We are promoting an amendment that states:

“Promoting the sustainable development of public access to recreational fishing opportunities as both part of the catching sector and the leisure and tourism industries, taking into account socio-economic factors.”

What is interesting, if we look across the pond at America, is that they have fishery management policies on some stocks. It is worth bearing in mind that those fish stocks that are of interest to the recreational sector do not clash desperately with the fish stocks that my colleagues from the catching sector wish to exploit. We are not interested in monkfish. We are not interested in hake. We are not interested in crabs. We are not interested in lobsters. We are actually only interested in something like 20% of fish landed into UK ports, so there is plenty of opportunity to look at sensible resource-sharing.

In America, the striped bass fishery, which was driven to extinction by commercial overfishing, has recovered as a result of tough conservation measures. They now have in place a resource-sharing operation where X percentage of the stock each year is reserved for the recreational sector, which generates huge value for the US economy. I can read the figures into the record if you like. We have the potential to do that over here. We can look at certain fish stocks and say, “Do you know what? We could deliver better for UK plc by managing that stock recreationally, or at least sharing a proportion of that stock.”

Q On that point, we have had representations about Cornish bluefin tuna effectively being allocated as a catch-and-release stock in future. That seems to be an area where there might be a tension between recreational fishing and those commercial fishers who might want to catch and use that in the food supply chain. How can the tension be resolved for a stock such as that, and is there anything that needs to go in the Bill about how stocks could be better managed where there is a potential clash?

Martin Salter: To be honest, Mr Pollard, I do not think that is a matter for the Bill. We are looking forward to meeting the Minister on bluefin tuna, although we accept that he is pretty busy at the moment with two Bills going through Parliament. It is interesting that the bluefin tuna is still on the endangered list, but the International Union for Conservation of Nature list goes back to 2011, which predates the International Commission for the Conservation of Atlantic Tunas stock recovery programme. That stock recovery programme has seen the global quota increased to something like 38,000 tonnes. The EU gets 20,000 tonnes of that. Under ICCAT rules, the EU has to allocate a small proportion to a non-commercial interest—in other words, a recreational catch-and-release interest. The recreational sector only ever needs a very small part of that quota because of the mortality rate for bluefin tuna. They are big, tough animals, and the Canadian model shows that their mortality rate is around 3.6%.

You can therefore have a very small quota in the UK and develop a thriving recreational tuna fishery. Given that the stock is slowly recovering, I should imagine that ICCAT would consider it far too early to start thinking about cranking up commercial exploitation in an area of the globe where it has not traditionally happened. A first run at tuna, if you like, really needs to be a tightly licensed, properly controlled recreational fishery that sits alongside the tagging programmes that the World Wildlife Fund is currently doing in Sweden and has also done in the Mediterranean.

We need to know a lot more about these wonderful creatures before we open the door to commercial exploitation, and the first stage would be to set up a recreational bluefin tuna fishery. That would generate an awful lot of money for the south-west and for Ireland, and it would also mean—this is really important—that there would be anglers out there looking after this resource. Frankly, if stakeholders are not engaged in the fishery, bad people will do bad things to fish, as can be seen in the amount of illegal and black fish landings that take place every year in this country.

Q I have a couple of questions. Mr Salter, the highlight of the Second Reading debate was the vision of my hon. Friend the Member for Broxbourne (Mr Walker) for what recreational fishing might do for local economies. Does recreational fishing need to be mentioned in the Bill for you to actually achieve that objective?

Mr Trebilcock, the Bill suggests an enhanced role for producer organisations. Are you fit for purpose—not your specific PO but generally—to fulfil such a role? At the beginning of last month the European Commission issued a reasoned opinion to the UK Government, which admittedly was about the management of POs but in which there was a strong suggestion that you are not doing what you should be.

Paul Trebilcock: You are absolutely right. The Commission is certainly having a look and gave a reasoned opinion about POs functioning in the UK, although that focused primarily on the compliance checks and the audit process by the Marine Management Organisation rather than the functioning of particular POs.

The short answer to your question is that, yes, I think POs are fit for purpose. They are primarily fishermen’s organisations, entirely funded by fishermen and run by and for fishermen to manage quota, market and represent. They have an extremely valuable role. Is there room to improve as we enter a new regime? Absolutely. Clarification of a standard that all POs across the country must deliver to, clarity of function and a greater understanding from people outside POs of what they actually do would all be really useful.

Q If I could just come back on that, you said POs function very much for the benefit of their local communities. The Lowestoft producer organisation in my constituency is made up of three or four accountants in the town but seven trawlers that never come near the port. I do not think that that is functioning properly.

Paul Trebilcock: No, but in response I argue that the Cornish PO, for example, is made up of around 150 different fishermen, from small handliners catching mackerel and bass through to beam trawlers. That is an example of how a producer organisation might work.

In the Lowestoft example, the local boats sold to Dutch interests, and there was an evolutionary process. The Lowestoft PO functions as a producer organisation, securing maximum price for its members and that sort of thing. The local community in Lowestoft chose not to be part of that. It is important that, as we enter the UK operating as an independent coastal state, all parts of the commercial industry are encouraged into producer organisations to ensure that they collectively understand and drive the function and operation of producer organisations wherever they might be.

You really have to be seeing the benefit. Perhaps that is a role where UK Association of Fish Producer Organisations and producer organisations in general have not particularly done well in explaining to and educating people outside the PO movement what they actually do for fishing communities. The reach and effect of producer organisations goes beyond their membership in a lot of areas. I know that the south-west and east of England POs will help those in the local community who are not even in membership. I strongly feel that producer organisations do a tremendous job around the country at the moment, and have the scope to build on that and do better things as we go into the post-Brexit era.

Martin Salter: The highlight of any debate is the contribution from the hon. Member for Broxbournero, as we know.

Do we need recreational fishing on the face of the Bill? It is great when the White Paper says:

“We will consider how we can further integrate recreational angling within the new fisheries framework recognising the societal benefits of this activity and impacts on some stocks.”

However—your constituents who fish recreationally will tell you this—for many years they have been a bit sick and tired of seeing their recreational sea angling experience fall off a cliff edge as stocks are overfished, and in some cases get driven into parlous conditions. They feel that the recreational sector, despite its economic significance—its significance for jobs and for coastal communities—is basically being left to feed on the crumbs that are left over after commercial exploitation has had its whack.

If you look at quality fishery management—at America and Magnuson-Stevens, and the New Zealand fishery conservation legislation—shares are allocated. There is proper resource sharing. There is consideration in a sensible, grown-up, policy development way—recognising the social and economic impacts of the exploitation of different stocks for different purposes. It might not just be for recreational fishing. It might be for diving or other forms of tourism. It might be for conservation. Yes, putting it on the face of the Bill would send a strong signal, and would also mean a sea change from the very discredited policies of the common fisheries policy. What I think the Bill is really about is recognising that this is a new chapter for fisheries management. That is why I would urge you to support our amendment.

We have eight minutes for five questions.

Q Paul, I think I agree with you that the work of the POs is much undervalued, and frankly not much understood. Tell us a little bit about the work of POs in terms of trading quota across the different parts of the UK.

Paul Trebilcock: One of POs’ functions is quota management. Part of that involves getting quota to those who need it—fishermen. That can be done through the swaps and transfer mechanism, which has evolved and developed over many years. Those can be swaps involving different quota stocks swapped for those needed. It can be leasing, it can be gifting, it can be borrowing and it can be a form of banking—it is quite a sophisticated and complex, or flexible, way of doing things, which enables it to be moved around to where it is needed, wherever possible.

Q What happens if the Administration in one part of the UK, for example, tries to restrict quota trading among other parts?

Paul Trebilcock: At the moment we have the ability to trade across all parts of the devolved Administration quota tonnages on an annual basis, but it is not possible to move the fixed quota allocation units across Administration borders, which hinders business and stops FQAs getting to where they need to be—fixed quota allocation units for stocks off the south-west probably are not needed in Shetland and vice versa. The ability to rebalance that and free that movement would be welcome, but at the moment there is free movement of quota tonnages across the devolved Administrations, which is absolutely essential in getting quotas.

Q And the Bill as it stands would allow that to continue free of political interference?

Paul Trebilcock: The Bill as it stands, as I read it, does allow for that. The risk, of course, is that there is the signal towards devolution that means the different devolved Administrations can, I think, as I read it, choose to have their own quota management rules. That is certainly a risk, but it does not appear on my reading to be a high risk. I would hope that all devolved Administrations were trying to work collectively for the benefit of their respective fishing industries and the UK as a whole, so retaining flexibility and restoring the flexibility to move FQAs would be a welcome addition.

Mr Salter, you rightly placed great emphasis on sustainability. Given that in the UK we export most of our fish and export most of what we catch, most of what is consumed comes from places in which as an independent coastal state we rightly have no control over whether things are fished sustainably. Do you see a role for consumer-type markings on sustainability? Should that be left up to the industry or should there be some kind of legal basis so that we walk the walk on sustainability as well as talking the talk?

Martin Salter: I think consumers welcome guidance. It is a matter for you whether you think legislation is required, but when you walk into a supermarket you see a very complicated tapestry in front of you.

We have a very real problem with farmed salmon. Our colleagues from Scotland recognise it as an important industry, but if it were a land industry it would be shut down tomorrow given the appalling levels of pollution. The amount of sewage that is discharged as a result of the Scottish salmon farming industry into pristine marine lochs is quite horrendous. The wrasse that are prevalent around Mr Pollard’s constituency in the south-west are slow-growing fish of very little commercial value—often the first fish that youngsters catch when they go sea angling. They are being shipped live to the Scottish salmon farming industry as a cleaner fish to eat the lice because that is cheaper. That is a double bad whammy. The industry really needs to improve its act—I notice that Norway is moving a lot of its agriculture on to land so that it can deal with the effluent.

I still see an awful lot of people eating Scottish farmed salmon. I am sure Scottish MPs welcome the fact that they do so, but in sustainability terms and environmental terms it is a dreadful product—doubly dreadful because of its impact on sea fish down in the south-west. Perhaps statutory guidance would be welcome, or at least a level playing field in which agriculture was forced to clean its act up as farming practices on land have been forced to do over the years.

We are running out of time. May we have a last question from Alan Brown?

Q Mr Salter, you seem to be talking about having a percentage of quotas ring-fenced for recreational angling. How would getting that into the Bill work? Would it apply to future quotas to allow expansion of the sector?

Martin Salter: We are not calling for that to be in the Bill; it would tie the Minister’s hands. If we are to adopt world-leading sustainable fishery management practice, it is important that Ministers and decision makers are able to take the best scientific advice without having to come back to Parliament to change quotas and reallocate bass stocks from 30% recreational to 37% recreational, for example. That clearly would not work. They have to have that power, but that is why it is important that we put a duty in the Bill for Ministers to set sustainability targets.

The point about resource sharing is more about achieving an optimal economic and societal return for the stock. I find it very sad that protected species such as the grey mullet that we see swimming around harbours in the UK have very little commercial value, yet at times of spawning aggregations we see entire year classes of those stocks totally netted, flooding the market and getting less than £2 a kilo. This is a slow-growing species: a grey mullet takes anything from 10 to 12 years to achieve a size that makes it a useful recreational angling target. It is a very poor use of that resource. As a good business calculation, which is the better use of that stock? Would reserving more of it for recreation give us more jobs for the UK economy—more bites for our buck, if you like? That is something that good fishery management practice would seek to achieve. It will not be achieved by legislation as such, but it could be assisted by a power and duty for fishery Ministers.

That is a complication, because trying to get a legislative framework that gives that certainty—

Order. We are strictly limited by time and it is now 11.25 am, so I fear I have to call this evidence session to an end. The Committee will meet again at 2 pm. The Committee Room will be locked in the meantime, so hon. Members may leave their papers here if they wish. I thank the witnesses very much indeed for their useful evidence.

Before we begin, I will make a few preliminary points. Please switch all electronic devices to silent. Tea and coffee are not allowed during sittings. Today we will consider the programme motion, which was agreed by the programming sub-committee yesterday. We will then consider the motion to enable the reporting of written evidence for publication. In view of the limited time available, I hope that we can take those matters without too much debate.

Ordered,

That—

(1) the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 4 December) meet—

(a) at 2.00 pm on Tuesday 4 December;

(b) at 11.30 am and 2.00 pm on Thursday 6 December;

(2) the proceedings shall be taken in the following order: Clauses 1 to 3; the Schedule; Clause 4; new Clauses; new Schedules; remaining proceedings on the Bill;

(3) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 6 December. —(Lucy Frazer.)

Ordered,

That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Lucy Frazer.)

We will begin line-by-line consideration of the Bill. The selection list, which shows how the selected amendments have been grouped for debate, is available in the room. Amendments grouped together are generally on the same issue, or similar issues. Decisions on amendments will not take place in the order in which they are debated, but in the order in which they appear on the amendment paper. The selection list shows the order of debate; decisions on each amendment are taken when we come to the clause that the amendment affects. I will use my discretion to decide whether to allow a separate stand part debate on individual clauses and schedules following the debates on the relevant amendments.

Clause 1

Deployment of judges

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

It is a pleasure to serve under your chairmanship, Sir Henry.

A key element of our reforms in relation to courts is ensuring that we have a justice system that works better for everyone, which includes making the best use of our judges’ experience, expertise and time. I should make it clear that the deployment of judges is a matter for the judiciary, and the Lord Chief Justice and the Senior President of Tribunals already have far-reaching powers to ensure that the right judges are deployed on the right cases, taking account of changes in case loads of different jurisdictions. However, there are five areas in which clause 1 would amend current legislation to increase that flexibility to deploy judges where they are needed.

The first change is about the temporary appointment of deputy judges to the High Court. The Lord Chief Justice already has a statutory power to appoint a person meeting the eligibility criteria as a judge of the High Court if their appointment is urgent, temporary and there are no other reasonable steps that could be taken to fill the gap. Those temporarily appointed judges are ordinarily existing, serving judges who have been appointed to a judicial office via the independent Judicial Appointments Commission process. Current legislation allows those appointments to facilitate business in the High Court or Crown court only. Clause 1(1) would widen that so that the person appointed could sit in any court or tribunal on which an ordinarily appointed deputy judge of the High Court could be deployed, such as the county court, the family court, the first-tier tribunal and the upper tribunal.

The second change in clause 1 relates to the upper tribunal. The Tribunals, Courts and Enforcement Act 2007 sets out which judges are judges of the upper tribunal and may therefore hear cases there. The definition comprises a number of different types of judge, such as circuit or district judges, but does not currently include recorders. As fee-paid judges, recorders have equivalent powers to circuit judges, and may sit in the Crown court or the High Court with appropriate authorisation. Allowing recorders to sit in the upper tribunal would allow the judiciary to make more use of recorders’ experience, expertise and skill, and would provide greater flexibility to meet business need.

The third change in clause 1 relates to chamber presidents in the first-tier tribunal and the upper tribunal. Currently, there is a restriction that prevents someone from presiding over more than one chamber of the first-tier tribunal or of the upper tribunal. Subsection (4) would allow a chamber president to be appointed to more than one chamber in the same tribunal. That would enable the Senior President of Tribunals to use the existing and future complement of chamber presidents to provide continuous leadership across all chambers without having to recruit and appoint a new chamber president immediately if there were a vacancy.

The fourth change in the clause relates to senior judges of employment tribunals. Currently, there are restrictions on where senior judges of employment tribunals may be deployed. The Bill will enable the presidents of employment tribunals for England, Wales and Scotland to sit in the Employment Appeal Tribunal, which will provide additional capacity for experienced judges to hear appeals. The Bill will also enable leadership judges— the presidents and vice-presidents of the employment tribunal Scotland, and regional employment judges of the employment tribunals—to hear cases in the first- tier tribunal and the upper tribunal, making more use of their experience and skill where needed.

The final part of the clause relates to flexible deployment with respect to arbitration. The Arbitration Act 1996 currently provides for certain judges of the High Court to sit as judge-arbitrators. That allows cases falling within the relevant jurisdiction of the High Court to be resolved via arbitration with the Lord Chief Justice’s permission. The clause extends the range of High Court judges who can sit as judge-arbitrators, and would also allow the Lord Chief Justice to delegate his functions in agreeing that judges can be appointed as judge-arbitrators. That will allow, for example, judges in the chancery division of the High Court, which has seen a growth in demand for arbitration in recent years, to resolve cases in that way. Those provisions, taken together, will contribute towards a modern and responsive justice system.

It is a pleasure to serve under your chairmanship, Sir Henry. While we accept the necessity for the clause, we have some concerns, which we hope the Government will take on board.

We accept that there are practical arguments for expanding the flexible deployment of judges, including temporary judges appointed outside the usual Judicial Appointment Commission selection process, to a wider pool of courts and tribunals. The appointment of temporary judges as a principle, however, should be approached with caution. It is important to view flexible deployment generally through the prism of the Government’s wider reforms and cuts, and plans for savings on judicial salaries.

We are concerned about that being used regularly as opposed to on an occasional basis. [Interruption.] Sorry, the Minister was looking very confused. We are concerned about the potential for a trend of too much reliance on temporary judges. The provisions should be used only to deal with urgent matters in the case of a shortage of judges, and the deployment of judges across different sectors should not become the de facto position.

Clearly, one of the things that the Government have not mentioned is what training provisions will be provided for judges moving out of their normal area of activity. If a Crown court judge is transferred to a tribunal, for example, what kind of training would they receive to deal with issues unique to the tribunal system—for example, on issues of disability, reasonable adaption for the purpose of disability legislation, and what could be considered discriminatory under equality legislation. Those are key issues unique to employment tribunals. We want to know and ensure that there are training provisions for that.

As a consequence of the clause, civil judges might come into the criminal courts and Crown courts. What training will be provided for them to deal with specific issues that are unique to the criminal court, such as admissions of previous convictions, which can sometimes be brought in against defendants, and go against the normal rules? What about issues of disclosure? If a failure to disclose material information is ruled inadmissible, it can cause the whole case to collapse. Those are some of the things that are unique to particular courts. I have used the example of the Crown court and the employment tribunals to demonstrate that there are things that are unique to those courts. While we will not oppose the clause, we ask the Government to provide some assurance that the Lord Chief Justice and the Lord Chancellor will make proper financial provision for those judges to update their skills and to receive professional training when they go into a different area of judicial function.

I am grateful to the hon. Lady for making some important points. She can rest assured that the temporary appointments are temporary, and they can be made only if they are urgent and temporary and if no other reasonable steps can be taken to fill the gaps. I can also assure her about training: where judges are asked to sit in a new jurisdiction, further induction will be provided in line with the directions of the senior judiciary. The Judicial College is in charge of training, and it will continue to train our judges. Judges will also attend continuation training for all jurisdictions in which they sit.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Clause 2

Alteration of judicial titles

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

No amendments have been tabled to the clause and no issues at all were raised in the other place, or on Second Reading in this place.

In summary, the clause is part of our reform to modernise our courts to ensure that court users know who is hearing the case, and what sort of case the matter is about. The clause therefore provides for amendment of judicial titles to reflect a change in the name of the court in which those judges sit. It also ensures that the title of that office and similar offices can be changed through secondary legislation in the future.

Subsections (1) and (2) change the title of chief bankruptcy registrar to chief insolvency and companies court judge. That reflects the change in the name of the other judges of this court and of the court itself. In 2017, the name of the court dealing with bankruptcy matters was changed to the insolvency and companies court to better reflect its work. Earlier this year, the titles of the more senior judges in that court were changed to reflect the change in the name of the court. The Bill therefore changes the title of the office of the senior judge to bring it in line with other judges of the court.

Subsection (3) enables the judicial titles of other senior masters and district judges of the senior courts to be changed in future by secondary, not primary, legislation, should it be necessary to do so. Changes of title may be required, for example, because of organisational changes in the courts and tribunals. The clause will correct an anomaly that prevents some judicial titles from being amended by ministerial order. Such judicial measures, while relatively modest, will contribute towards a more modern justice system.

The clause seems to be a sensible one, so the Opposition have tabled no amendments to it.

I am pleased to hear that.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.

Clause 3

Authorised court and tribunal staff: legal advice and judicial functions

I beg to move amendment 2, in clause 3, page 3, line 24, leave out subsection 3 and insert—

“(3) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before Parliament and approved by a resolution of each House.”

This amendment would require that where statutory instruments delegating judicial functions to authorised persons are brought they would be subject to the affirmative procedure.

We tabled the amendment because the existing drafting of the clause appears to allow the delegation of judicial functions to authorised persons without going through an affirmative process—that is, without using secondary legislation. As the Bill stands, that would be done automatically. Bearing in mind that we have expressed concern about the whole system of the authorised person being delegated judicial functions, we believe that that should be done, if it comes to that, by means of a statutory instrument so that Parliament has a chance to discuss it. We would be able to make observations and it would not go through on the nod.

The issue of delegating judicial functions to authorised persons is important to us. At the moment, the Bill does not talk about who such people will be, what their qualifications are, what they will do, or what subjects and issues they can deal with. As the Bill is drafted and from what Ministers have said, the procedure committee is expected to make all those decisions. We do not accept that that should be the case. There are real issues that need to be determined through parliamentary discussion. These measures should be introduced through statutory instruments and not just be decided by the procedure committee as envisaged in the Bill. The procedure committee should listen to our concerns. We want more parliamentary scrutiny of this part of the legislation, through a statutory instrument.

I am grateful to the hon. Member for Bolton South East for raising the issue and giving me the opportunity to respond, so I can satisfy her that her concerns are unfounded, I hope.

The power in clause 3(2) seems to have caused considerable confusion here and in the other place, so it might be helpful for me to explain how it works. That power does not permit the delegation of judicial functions to authorised persons—that is a matter for the procedure rules made by the independent rule committees. The power in clause 3(2) could not make such changes because it is a narrow power that is very clearly restricted to consequential, transitional, transitory or saving provisions—a concept that is well understood with many precedents. Those terms are construed strictly by the courts.

The power in clause 3(2) is needed because the procedure rules cannot be used to make all the necessary amendments to other secondary legislation—we will use regulations made under the clause to do that. The power is needed principally to amend references in secondary legislation from “justices’ clerk”, a post abolished by the Bill, to “authorised officer”. So far, we have identified more than 200 references in more than 60 pieces of secondary legislation that would need amendment, and there may be more.

The Government do not intend to use this power to amend primary legislation. Lord Keen gave an undertaking to that effect on Report in the other place. Therefore, there is no express provision for such amendments in clause 3. To accept this amendment would set an unhelpful precedent and would mean that valuable parliamentary time would have to be set aside to debate minor and consequential changes to secondary legislation. In a busy parliamentary Session, that would delay implementation of the provisions in the Bill. I hope that the hon. Lady is reassured and feels able to withdraw the amendment.

Although I hear what the Minister says, we are not reassured and we will push the amendment to a vote.

Question put, That the amendment be made.

I beg to move amendment 3, in the schedule, page 6, line 36, at end insert—

“(aa) is a qualified solicitor, barrister or chartered legal executive with more than three years’ experience post-qualification, and”.

This amendment would stipulate that the minimum legal qualifications for authorised persons should be three years’ experience post-qualification.

With this it will be convenient to discuss the following:

Amendment 4, in the schedule, page 8, line 31, at end insert—

“() is a qualified solicitor, barrister or chartered legal executive with more than three years’ experience post-qualification, and”.

See explanatory statement to Amendment 3.

Amendment 5, in the schedule, page 11, line 12, at end insert

“and if they are a qualified solicitor, barrister or chartered legal executive with more than three years’ experience post-qualification”.

See explanatory statement to Amendment 3.

As I have indicated to the Clerk, we will be dividing the Committee on these amendments.

Clause 3 delegates judicial functions to authorised staff, and we are concerned about that. Although we accept that there are some occasions where people other than judges can make decisions on cases, such as on simple procedural issues, including time extensions or requests for adjournments, if authorised people are to be given more than those powers, they must be of a certain calibre. The Bill gives no information on who these people will be, and that worries us, because it would appear that allowing jobs carried out by judges to be done by others, who are not qualified, is another attempt to cut costs and save money. If the Bill said that the authorised people were to be qualified lawyers, barristers or solicitors, or legal executives with three years’ experience or more, as in the amendments, we would be much more reassured about this part of the Bill.

Does my hon. Friend agree that even what might, on the face of it, be a straightforward case management conference could involve complex tactical or substantive issues? Giving such decisions to someone who is not legally qualified could have a massive impact on access to justice.

My hon. Friend makes an excellent point. We know that more and more people are now representing themselves in court because of cuts to legal aid. If those making decisions—those may appear to be administrative but may be quite crucial to these people—are not legally qualified and trained, errors are more likely to occur, because we now have so many people representing themselves who are not familiar with court processes or the courts. That is on top of the fact that so many courts are now being closed, and a lot of the work is being done off-site by means of technological improvements. Many cases used to be disposed of in a physical court building, and there would be judges, lawyers and people who could assist and give advice and information. Now, with so much being done outside of court buildings and from call centres, there is even less help available.

I will give an example. When I was prosecuting, defending or in court, someone would sometimes turn up who had no legal representation. They would be really worried about what was going on. I and many of my colleagues would give informal advice; it was not legal advice, but we could point them in the right direction—we could suggest things they could try. There was somebody to give them advice or assistance; the court clerks or staff in the court were also able to direct people informally. However, with fewer and fewer people going to court, more and more things being done online, and more and more stuff being carried out in call centres, where someone does not know who they are speaking to or what qualifications or level of experience they have, it is even more important to ensure we have this safeguard.

It is okay to have laws, but if we have no mechanism to enforce them, or to ensure that they are done properly, justice is not served. Therefore, the complete lack of information in the Bill about who the authorised people will be, and even about what work they will do, is completely wrong. That is why we feel strongly about it, as we mentioned on Second Reading in the House of Commons, and in the other place. To date, the Government have taken no notice of that.

We also have to recognise that some of the authorised people will be employed directly by Her Majesty’s courts and tribunals, which raises questions about accountability and independence. They may be more subject to pressures because of administration. Again, therefore, we need something to show that the people who will do these things are qualified.

Qualified barristers, solicitors and lawyers, even when they work in the courts system, have an appropriate professional body with codes of conduct they have to abide by. If they do not abide by those codes of conduct, they could be struck off from their practice. However, if the people who carry out the work are not legally qualified, such as administrative staff or clerical officers, they will not have to think about their independent professional bodies. In fact, they will probably be more subject to pressures of administration to speed things up. If somebody asks for an adjournment, staff might say no; if somebody wants certain documents to be disclosed, they will say that that cannot be done, because they will be under pressure to speed things up and deal with cases quickly. They will not be as concerned as a barrister, a solicitor or a chartered executive about what their professional bodies will say.

We also do not know what kind of functions these people will be given. As my hon. Friend mentioned, something that seems straightforward could actually be quite complicated. I refer to disclosure issues in civil cases, as well as in the criminal courts. Disclosure is an important part of a case proceeding properly. Someone may well ask for certain information, and the person at the other end will say, “No, you don’t need it,” but we do not know. Because they do not have the legal expertise and knowledge, there is a greater chance of errors occurring and things happening that perhaps would not happen if a legally qualified person were exercising those powers.

The Government’s approach is that all these issues can be dealt with by the procedure rule committees, which are made up of judges and other practitioners. They are also under pressure and financial constraints, however, so they would also have to look at pressures and so on, and they might not be able to do things as independently as we might ask.

The hon. Lady is, of course, making important points, but we can have a degree of confidence that the judges who head up the committees, who have shown themselves to be scrupulously and fiercely independent, would continue to behave in exactly that way. Does she not agree?

I have, of course, the utmost regard and respect for our judiciary, but I believe that, in the procedure committees, financial constraints and pressures sometime come into play in trying to speed things up through the courts system. The ethos is that a case should be dealt with very quickly—there is nothing wrong with that—and that there should be minimal interactions between lawyers in the court process. When the procedure committees make certain rules, such as defining who the authorised person is, what is wrong with Parliament saying that the starting point should be that those authorised persons must have been legally qualified for at least three years?

It is also important that we have an idea about what kind of things the authorised persons can do. Procedure committees can make rules, but they may be constrained by trying to get things through quickly. There may be things that they think that authorised persons can do, but, in fact, they should not, because they are not judicial. I do not see what is wrong with us, as Parliament, saying, “Look, this is the bare minimum that the procedure committees should be thinking about.” Then they can add to it.

I am grateful to the hon. Lady for giving way a second time. May I respectfully press her a little on this? On the one hand, she says that she has enormous respect for the procedure rule committees, the judges and the highly qualified people who occupy these positions, and that they would always act in a way that is consistent with justice. On the other hand, she says that, actually, they will not, because they will ensure that a desire to avoid delays trumps justice. She cannot have it both ways. If she trusts the judges, she needs to come out and say that she trusts them to act in the way that they have, in time-honoured tradition, which is by putting justice first.

My observations relate to when judges are dealing with an individual case. Of course, we know that they are independent, but when someone becomes part of an administrative body, a procedure committee or an arm of the state—I mean that in a loose way, not in terms of a formal relationship—sometimes the criteria that they look at are different from when they are dealing with an individual case presented before them.

I will give an example, albeit not one that relates to judges. The Crown Prosecution Service, an organisation for which I worked for a number of years—I still have friends who work in it, even though I left years ago—has had different people serve as Director of Public Prosecutions. However, prosecutors who have been there for a long time say that, bar perhaps two DPPs who were really concerned about ensuring that the department was fully financially resourced, and who actually fought hard for it to get resources, the other DPPs did not make that sort of effort. People do act for administrative purposes.

The reality is that senior people at the top of organisations, when they are doing administration and are running institutions, look at things such as money and financial administration, try to save as much money as possible, and try to push things along as quickly as possible, because that looks good in their statistics. Because of that, we would say that what we are asking for is not too weighty. We have tabled very reasonable amendments. The people who will make some of these enormous decisions should be legally qualified and—we will come on to this later—we should consider what kind of things they can actually do. I do not think there is anything wrong with giving a steer to procedure committees. They can deal with some of the other rules, but we should have some basic minimum standards.

I, too, propose to deal with amendments 3, 4 and 5 together, as they all relate to minimum qualifications for authorised staff. Amendments 3 and 4 require that any staff member who gives legal advice to lay justices or judges of the family court be legally qualified and have more than three years’ experience post qualification. Amendment 5 makes the same requirement of any staff carrying out judicial functions.

The staff who currently give legal advice in the magistrates court and the family courts are justices’ clerks and assistant clerks. Assistant clerks, who are also known as legal advisers, currently provide the overwhelming majority of legal advice on a day-to-day basis. To be an assistant clerk at the moment one must be a barrister in England and Wales or a solicitor of the senior courts of England and Wales, have passed the necessary exams for either of those professions, or have qualified as a legal adviser under historical rules that were in place prior to 1999.

The Minister is explaining who will get to decide whether we are flexible on this in the future, bit what I do not hear—what I do not hear in any of this Bill—is how we make sure that these changes mean improvements for the people who use these courts. While the judiciary and the people carrying out these functions certainly seem to have a voice in the changes being proposed, in terms of the changes I would like to see in the family courts, the voices of those people using the courts are nowhere in this Bill.

That is a very important point. We serve the people through justice and the court system. The people who come to the courts to get justice are the people my Department is serving. In all our reform programme, we have a user-centred focus and consistently engage with users to improve our services. All the forms we have recently produced were produced with insight from users, which is why we have an extremely high satisfaction rate for the reforms we are making.

The hon. Member for Birmingham, Yardley makes an important and valid point, and I can tell her how users will benefit from this. She will have been in the House when questions were put to me about delays in the court system and about the time it is taking for certain hearings to come before the courts. We want to ensure that there are as few delays as possible and that justice is not only fair but speedily dispensed. These changes will allow functions to be operated by the appropriate people, and will enable us to get more swift, easy and quick justice for those who use our courts.

I am sure the Minister is sincere in her intention. My experience is that there is increasing delay. Part of that is caused by inexperience, perhaps because of the use of lay magistrates as opposed to district judges, who do not take command of the issue and do not timetable matters correctly. I am concerned about any decline in the level of experience. This is perhaps a question not of legal qualification but of experience in being able to manage and seize control of cases. I would rather see the greater control and scrutiny that the amendments would introduce.

I am sorry if the hon. Gentleman has not experienced the appropriate level of judicial engagement or appropriate judgments in courts. I recently went to the family court in London, and I have been to courts across the country, and I have spoken to magistrates who operate in the family courts. The expertise and dedication I see is commendable. We can stand still, do nothing and just let our courts operate in the way they are operating, or we can sit back and reflect on how we can improve our court system. We are trying to do the latter through the Bill. We are trying to improve people’s experience of the courts, recognising that funds and resources are not unlimited and that we need to use them as well as we can. On listing, my Department is looking at a listing programme to ensure that lists operate as effectively as possible.

It is simply not necessary for all authorised staff exercising judicial functions to possess legal qualifications. The qualifications and experience staff need will depend on the nature of the work they carry out. Legal qualifications of the level that would be required by amendment 5 not only are far too high for the routine and straightforward case preparation tasks that we anticipate many authorised staff may carry out, but may not be the most relevant qualifications for staff in different jurisdictions. For example, it is more helpful for a registrar in the tax tribunal to be a tax professional by background than to be a legal professional. Where powers currently exist, rule committees already determine the qualifications staff need to exercise particular functions, and that works well. Such committees can focus qualification and experience requirements on what is most relevant to the work that those staff carry out.

Amendments 3, 4 and 5 would all set the bar for qualification prohibitively high and rule out a large proportion of Her Majesty’s Courts and Tribunals Service staff from giving legal advice or exercising judicial functions, even though they may have been doing either or both for a number of years.

Will the Minister be kind enough to address the issue of the approach we can expect judges to take in rule committees? It is my experience that they show themselves in court to be scrupulously fair and focused on justice. Does she agree that there is no reason to think they would abandon those principles when they sit out of court on a rule committee to make these important judgments?

My hon. Friend makes an extremely valuable point. Rule committees are made up of members of the judiciary and legal professionals, who take their roles incredibly seriously. Lord Thomas said on Second Reading in the other place that

“it is important to stress the degree of control inherent in the Bill by the use of the rule committee. I was a member of and chaired…the Criminal Procedure Rule Committee, which I can assure you is a highly representative body with many representatives of the legal profession.”—[Official Report, House of Lords, 20 June 2018; Vol. 791, c. 2039.]

It is important to note his experience of sitting on and chairing a rule committee. I actually sat on an insolvency rule committee when I was at the Bar, and I do not think anyone mentioned costs. We were concerned with ensuring that the procedures we used in court day in, day out worked well, and that they worked well for our clients, too.

A loss of expertise would render the provisions in clause 3 and the schedule unworkable. I should add that a member of staff will not be able to give legal advice or exercise judicial functions until they have been authorised to do so by the Lord Chief Justice or their nominee, or by the Senior President of Tribunals or their delegate. Authorisations are therefore ultimately the responsibility of the judiciary, who will not authorise staff unless satisfied of their competence.

The Government’s position is consistent with the approach taken over many decades and is supported by both current and former members of the senior judiciary. Lord Neuberger, former President of the Supreme Court, said that the amendments place

“a potential straitjacket on the ability to appoint the appropriate people to make appropriate decisions.”

He went further, reflecting that there

“will be many decisions”

for which the level of experience set out in the amendments

“would be appropriate, but there will be others where less experience would be adequate for the decision-making.”—[Official Report, House of Lords, 10 July 2018; Vol. 792, c. 882.]

I want to reassure hon. Members that we have listened to the concerns expressed here and in the other place about linking the qualifications of staff to the judicial functions that authorised staff may carry out. That is why we added further safeguards to the Bill in the other place by restricting the functions that staff will be able to exercise. In the light of that, Lord Marks of Henley-on-Thames said:

“we are not persuaded that it is necessary for the authorised person exercising the remaining powers—some of which are trivial, some minor and some of more substance—to be a qualified lawyer or one of particular experience.”—[Official Report, House of Lords, 16 October 2018; Vol. 793, c. 414.]

Before I close, I would like to respond to a number of the points made by the hon. Member for Bolton South East in putting forward her amendments. She has mentioned for the second time in her submissions cost-cutting. What we are doing in the Bill is trying to achieve a position whereby judges are deployed in the most effective way to bring justice to the people whom they serve. We are trying to ensure that jobs are appropriate for those who carry them out, and that they have the appropriate qualifications. The hon. Lady suggested that only barristers, solicitors and judges—that is, people who are legally qualified—understand justice. That is self-evidently wrong. A large part of our criminal justice system is the justice dispensed by magistrates, who are volunteers and are extremely able. As I have said, many people are already carrying out the functions, and carrying them out well, in courts and tribunals across the country.

The hon. Lady mentioned court closures. Of course, this is not a debate about court closures; it is a debate about who carries out functions in the courts that operate. She also suggested that call centres are having a detrimental impact on justice. Our call centres are actually improving justice, because, as can be seen from the take-up rate, people are speaking to someone who can answer their concerns much more speedily. The satisfaction of people ringing up is improved as the pick-up time is improved, because it is now dedicated people picking up the phone, rather than people in courts, who have a large number of things to do.

I hope that the hon. Lady feels able to withdraw the amendment, based on the explanations that I have put forward.

I thank the Minister for her response, but our position remains the same, and we ask for a vote on the amendment.

Question put, That the amendment be made.

I beg to move amendment 6, in the schedule, page 11, line 32, leave out subsection 67C and insert—

“67C Right to judicial reconsideration of decision made by an authorised person

A party to any decision made by an authorised person in the execution of the person’s duty as an authorised person exercising a relevant judicial function, by virtue of section 67B(1), may apply in writing, within 14 days of the service of the order, to have the decision reconsidered by a judge of the relevant court within 14 days from the date of application.”

This amendment would grant people subject to a decision made under delegated powers to a statutory right to judicial reconsideration.

With this it will be convenient to discuss the following:

Amendment 7, in the schedule, page 19, line 21, at end insert—

“(7A) A party to any decision made by an authorised person in the execution of the person’s duty as an authorised person exercising functions of a tribunal, by virtue of this subsection, may apply in writing, within 14 days of the service of the order, to have the decision reconsidered by a judge of the relevant tribunal within 14 days from the date of the application.”

This amendment would require the Tribunal Procedure Rules to set out a procedure for applying for judicial reconsideration. It is consequential on Amendment 6.

Amendment 8, in the schedule, page 11, line 40, at end insert—

“(2A) In reaching its decision under sub-paragraph 2 above, the authority must consider whether the function is capable of having a material impact on the substantive rights of the parties.”

This amendment would require any Procedure Rules Committee making rules about the functions to which a reconsideration right would apply to consider whether the substantive rights of the parties will be materially affected.

Amendment 9, in the schedule, page 19, line 39, at end insert—

“(2A) In reaching its decision the Committee must consider whether the function is capable of having a material impact on the substantive rights of the parties.”

This amendment would require any Procedure Rules Committee making rules about the functions to which a reconsideration right would apply to consider whether the substantive rights of the parties will be materially affected.

Amendments 6 and 7 have been tabled to ensure that there is a safeguard for claimants who do not accept a decision made by authorised persons. There should be a right to a statutory reconsideration, and the claimant should be able to apply in writing, within 14 days of the service of order, to have a particular decision reconsidered by a judge of the relevant court. They are strengthening provisions. As we do not know who authorised persons will be or what delegated functions will be given to them, we believe that if claimants disagree with important decisions, they should have a statutory right to reconsideration. The Bill makes no reference to that.

Amendments 8 and 9 relate to the issue of material impact. When a decision is being made on whether there a should be a reconsideration within 14 days, we ask that there be consideration of whether the function could have a material impact on the substantive rights of the parties. That means that we accept and acknowledge that one should not be able to ask for reconsideration simply because one disagrees with the decision of the authorised person; one must have a cogent reason. There must be proper grounds for requesting a reconsideration. We would define and decide what is an appropriate reason for asking for a reconsideration by assessing the limb of material impact on the substantive rights on the parties, which I think speaks for itself. That relates to decisions made by authorised persons that are material and important to the claimant, who should be able to ask for a reconsideration of that decision.

We suggest that the application in writing should be sent within 14 days of the decision, but it could be 21 days if the Government wished to change that. We think that 14 days is the minimum period that should be allowed for the reconsideration application to be made. The Government’s intention is to leave the procedure committee to decide fully what “material impact” means, whether there should even be reconsideration options for claimants, and by what processes that must be done.

We are effectively asking for safeguards for litigants. I will try not to repeat the same points, but it is important to remind the Committee of a point I made earlier, which was that a number of claimants are not legally represented because of cuts to legal aid, both civil and criminal. Many people now go to court without any legal advice, and are basically litigants in person or may have a McKenzie friend. To ensure that decisions are made properly, if there is a material impact on the substantive rights of parties, claimants should be able to ask for a reconsideration of the decision by a legally qualified judge of the court. People will have more confidence that the decision has been made properly, if it is made by a judge.

It should not be left to the procedure committee to decide, in theory, whether to allow reconsideration or to decide, off its own bat, what kind of decisions should be up for reconsideration. We ask that it determine and put into place rules on how reconsideration applications could be done.

Again, those three things are there to enhance the right of the ordinary person going into the court system and to ensure that our judicial system maintains the highest standards, as accepted throughout the whole world. For Parliament not to have democratic oversight of the matter, and not to indicate what the procedure committee should do, is a derogation of our duty to the people of this country. We are effectively looking after their interests. A judgment or decision by an authorised person should be subject to review by a judge. We accept that should not be done gratuitously, or in cases that do not warrant it, but if the decision has an impact on the rights of the person, that should be allowed. We ask the procedure committee to set out a procedure for applying for judicial reconsideration.

The hon. Lady makes a fair point; I will be interested to hear what the Minister says. How does she propose that an assessment be made about whether the decision truly had a material impact? A decision on whether to grant an adjournment or on whether to allow evidence to be admitted could in certain circumstances have a material impact, but in other circumstances might not. How would she ensure that the procedure to determine that was effective and efficient, and did not clog up the courts?

We could include the criterion of the impact on someone’s rights. When we look at a case, we can work out whether an adjournment or a particular issue regarding disclosure would have an impact. The legislation should have that as a criterion in determining whether there should be judicial reconsideration. Obviously, we assume that the procedure committee would set out a procedure whereby, when a person writes to the court to ask that something be reconsidered, it goes to a judge, who works out whether this was something that impacted on the person and should therefore be subject to reconsideration. The legislation does not do any of those things.

Although we accept that some administrative functions carried out by judges can be delegated to the “authorised people” defined in the Bill, when a judicial legal function is given to other people, there should be a right to ask for reconsideration of the decision if a litigant is unhappy with it. To avoid anything flimsy, we have helpfully put in the impact aspect, so that reconsiderations are not a matter of course but are limited to appropriate cases. We would leave it to the procedure committee to make rules as to what the procedure would be.

The amendments are perfectly reasonable. The Minister mentioned that some Lords in the other place said that the provisions were okay, but if we look at the Hansard, Lord Marks of Henley-on-Thames, Lord Pannick and others said that they had concerns, not just about the issue of 14 days’ reconsideration, but also in relation to the authorised persons. The Government have put all these things about judicial functions, delegated persons and authorised people into one clause, but concern was expressed in the other place about the need to make the legislation better. Those are my words.

We have gone further than some of the noble Lords in the other place, but we tabled the amendments not for the fun of it, but because we genuinely and sincerely believe that they would ensure that processes were carried out properly, justice was done properly, and properly qualified people would deal with issues. If there are decisions that people are unhappy with, they should have the right to ask for reconsideration within 14 days, if that is appropriate—or 21 days; I would be happy with whatever additional days the Government wished to add.

As the hon. Member for Bolton South East has said, amendments 6, 7, 8 and 9 deal with the right of reconsideration of decisions taken by authorised staff in courts and tribunals, and amendments 6 and 7 would enable a party in a case to request that any decision made by an authorised person exercising the functions of a court or tribunal be reconsidered by a judge. It might be appropriate for there to be reconsideration of decisions, but the Government believe that the independent procedure rule committees, composed of jurisdictional experts and experienced practitioners, are best placed to decide if such a right of reconsideration is needed and if so, the form it should take.

The approach taken in the proposed amendments would impose across all jurisdictions the same blanket right of reconsideration with an arbitrary deadline of 14 days. That would not work in practice, especially for those functions that are entirely straightforward case management and preparation duties. Each jurisdiction has its own ways of working, and it is imperative that any mechanism for reviewing decisions is designed with those jurisdictional intricacies in mind.

The rule committees in the civil and tribunals jurisdictions, for example, already have included in their respective rules a specific right to judicial reconsideration for decisions made by authorised persons. The magistrates courts and the family court, however, have their own existing mechanisms for reviewing various decisions, which the amendments would cut across.

Furthermore, the amendments are unworkable. In the magistrates courts, legal advisers issue some 2.5 million local authority summonses every year. If a right of reconsideration, as laid out in the amendments, were imposed on the court, a defendant could apply to the court against the issue of the summons. That would inevitably delay the first hearing and would mean that the matter would need to be referred to a magistrate who would reconsider the decision to issue the summons alongside a legal adviser, and the outcome of that decision would need to be notified to the parties before the case could start. That would build significant delay and cost into the process.

There are already three ways for a defendant to challenge a case in which a summons has been issued in the magistrates courts. They can make an initial argument to the court hearing the case that the summons should not have been issued, contest the substantive application made by the local authority, or apply for a judicial review of the decision to issue the summons. Creating a mandatory right to judicial reconsideration is therefore unnecessary.

I have some sympathy with the intention behind the hon. Lady’s amendments, which is to ensure that the Bill contains adequate safeguards. For that reason, the Government moved amendments on the right of reconsideration that were accepted on Report in the other place. Those require the committees, when making any rules, to allow authorised staff to exercise judicial functions and consider whether the rules should include a right to judicial reconsideration of decisions made by authorised staff exercising those functions. That means the rule committees will have to consider whether each judicial function should be subject to a right to reconsideration. Additionally, the amended Bill requires that if a rule committee decides against the creation of a right of reconsideration, it must inform the Lord Chancellor of its decision and the reasons for the decision.

The measures in the Bill should also be read alongside the existing statutory provisions, which require the committees to consult such persons as they consider appropriate before they make rules. If a rule committee then chose not to include a right of reconsideration in its rules, it would have to notify the Lord Chancellor. The Lord Chancellor could then ask the committee to reconsider its decision, or, if he agreed with it, he could lay the rules in Parliament. We expect that he would set out the committee’s rationale for not including a right of reconsideration in the explanatory memorandum to accompany the statutory instrument. The Bill as amended in the other place therefore ensures much greater transparency in the decision-making process.

Those are reassuring words. Will the rule committee have the right to request when, in certain circumstances, an exercise of discretion that might otherwise be innocuous—say, for the sake of argument, granting an adjournment—could lead to a material impact on the rights of an individual, that there could be a right of review in those circumstances? Does the Minister follow? It is important that that flexibility is in place.

I think that is right. It will be the rule committee that will set out the procedure and requirement for any reconsideration. If it considers what my hon. Friend has mentioned as an appropriate way forward, it could make those determinations.

The noble and learned Lord Thomas, the former Lord Chief Justice said:

“I support what the Government seek to do and urge a substantial degree of caution in respect of the proposal put forward by the noble Baroness”—

that is, Baroness Chakrabarti. He added that the Government’s approach provides the right balance:

“It gives discretion to a body that knows and has a lot of experience, but it contains that degree of explanatory accountability that will make sure that it does not do anything—even if we were to worry that it might—that goes outside a proper and just delegation”.—[Official Report, House of Lords, 16 October 2018; Vol. 793, c. 425-426.]

Amendments 8 and 9 relate to the right of judicial reconsideration and the substantive rights of parties to cases in the courts and tribunals. As I mentioned earlier, the amendments we made to the Bill in the other place now mean that the rule committees will, when making any rules to allow authorised staff to exercise judicial functions, have to consider whether each of those functions should be subject to a right to reconsideration. They would require that, in doing so, the rule committees should also consider whether the function in question would be capable of having a material impact on the substantive rights of the parties.

The amendments appear to have been prompted by concerns about the compatibility of the provisions in clause 3 and the schedule with the rule of law, the independence of the judiciary and article 6 of the European Convention on Human Rights. In the circumstances, the Government believe the amendments are unnecessary. The independent procedure rule committees have for many years been making rules about practice and procedure which impact on court users. In carrying out this public function, they must ensure that the procedure rules are compatible with fundamental rights, including rights under the convention. I note that the overriding objective of the criminal procedure rules, for example, explicitly refers to these rights.

Other safeguards in the Bill will help to ensure compatibility with the right to a fair trial. Most importantly, the Bill provides that all court and tribunal staff who are authorised to exercise judicial functions will now be independent of the Lord Chancellor when doing so, and subject only to the direction of the Lord Chief Justice or their nominee or the Senior President of Tribunals or their delegate.

The Bill also provides, for the first time, protections from legal proceedings and costs in legal proceedings and indemnities for all authorised staff when carrying out judicial functions, which will further safeguard their independence. We have, of course, strengthened these safeguards by limiting the types of functions that authorised staff will be able to exercise, through the Government amendments we made to the Bill on Report in the other place.

I hope I have reassured the Committee and the hon. Member for Bolton South East that there is no issue of compatibility between the measures in the Bill and article 6 rights, the rule of law or the independence of the judiciary. The Bill strikes the right balance between ensuring appropriate safeguards and transparency of decision-making, and leaving the jurisdictional rule committees the discretion to determine the most appropriate mechanism for reviewing decisions by authorised persons. I urge the hon. Member for Bolton South East to withdraw her amendment.

I thank the Minister for her response, but our position remains the same and I therefore wish to press the amendment to a vote.

Question put, That the amendment be made.

Amendments 8, 7 and 9, which have just been debated, can be moved formally by the hon. Member for Bolton South East, or she can withdraw them in the light of the last vote.

I would like to move amendments 8 and 7, but not 9.

Amendment proposed: 8, in the schedule, page 11, line 40, at end insert—

“(2A) In reaching its decision under sub-paragraph 2 above, the authority must consider whether the function is capable of having a material impact on the substantive rights of the parties.”—(Yasmin Qureshi.)

This amendment would require any Procedure Rules Committee making rules about the functions to which a reconsideration right would apply to consider whether the substantive rights of the parties will be materially affected.

Question put, That the amendment be made.

I beg to move amendment 1, in clause 4, page 4, line 6, leave out subsection (8).

This amendment would remove the privilege amendment inserted by the Lords.

This is a technical and procedural amendment to remove the privilege amendment made on Third Reading in the other place. The privilege amendment recognises that provisions in the Bill may infringe the privilege of the House of Commons with regard to the control of public money, and amendment 1 will leave out subsection (8), ensuring that the imposition of any charge resulting from the Bill is properly approved. In practice, the new powers the Bill will confer and the cost arising from them will be met by the Ministry of Justice.

Amendment 1 agreed to.

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

Clause 4 is technical in nature but it is important to give proper effect to the measures the Committee has considered. Subsection (1) confirms the short title of the Bill. Subsections (2) and (5) set out the commencement provisions, which will enable speedy and orderly implementation of the measures in it: clause 4 will come into force on the day on which the Bill is passed; clauses 1 and 2 will come into force two months after Royal Assent; and clause 3 and the schedule will come into force on a day to be appointed by the Secretary of State in regulations.

Subsection (4) allows the commencement regulations to make transitional, transitory or savings provision and to appoint different days for different purposes or areas, which will ensure that the rule committees are able to implement the proposals as they best see fit. Subsections (6) and (7) set out the territorial extent. Subject to certain exceptions, the provisions of the Bill extend and apply to England and Wales only. Where the provisions extend beyond England and Wales, this is in relation to tribunals, for which responsibility is currently reserved to Westminster. This is not the moment for debate about devolution matters, but I stress that we have undertaken extensive consultation with the devolved Administrations in preparing the Bill, and they agree with our analysis.

Subsection (8) is the privilege amendment inserted by the House of Lords, with which I have already dealt.

Clause 4, as amended, ordered to stand part of the Bill.

New Clause 1

Review of the delegation of legal advice and judicial functions to authorised staff

“(1) Within the period of three years from the coming into force of this Act, the Lord Chancellor must arrange for a review to be undertaken on the impact of the implementation of the provisions contained within section 3 and the Schedule to this Act.

(2) A report setting out the findings of the review must be laid before both Houses of Parliament.”—(Yasmin Qureshi.)

This amendment would require the impact of the delegation of judicial functions to be reviewed within three years of it coming into force.

Brought up, and read the First time.

I beg to move, That the clause be read a Second time.

The new clause asks for a review of the impact of the legislation to be carried out within three years of the start of the Act, and that this be laid before both House of Parliament. The reason for that is, as mentioned earlier and in all debates in respect of the Bill, the Opposition have serious concerns about how the Bill will work out and about its impact on our justice system—in particular on litigants who go into court not legally represented, as often happens.

With the Act, there will be a more rapid use and deployment of judges from one sector to another, and we would like the Government to consider how that is working and its impact on our traditional court system. We believe that the functions the authorised people will be given and the issue of reconsideration will have a clear impact on what happens in both our criminal and civil courts.

As the hon. Lady mentioned, the new clause is about reviewing the impact of the authorised staff provisions within three years of the Bill coming into force.

Reviewing laws is always important. We in the Ministry of Justice do not shy away from that. The question is what the appropriate form of that review is. As the impact assessment for these measures says, we have committed to working with the rules committees and the senior judiciary to monitor the impact of any future assignment of judicial functions and responsibilities to authorised staff. This is particularly important where the Bill enables provisions to be extended to a new jurisdiction; for example, the power of authorised staff to carry out judicial functions will be new to the Crown court. We therefore expect the criminal procedure rule committee to conduct a review of the provisions as it feels appropriate, and to draw on its impartiality and expertise in doing so.

In other jurisdictions, the exercise of judicial functions by staff is already kept under review by the relevant rule committees, by the senior judiciary and by Her Majesty’s Courts and Tribunals Service, where appropriate. For example, the civil procedure rule committee has undertaken a review of a pilot scheme in which a range of functions were delegated to legal advisers in the County Court Money Claims Centre. As a result of that, the committee decided to modify and extend powers. It has also agreed to a further pilot to allow legal advisers in the county court to make unopposed final charging orders. This will run to April 2020 and, again, will be reviewed before a decision is taken to extend it.

Those reviews and this approach to implementation are illustrative of how we expect these measures to be rolled out in the future: incrementally, with the necessary monitoring, and subject to review and evaluation before any further steps are taken. The rule committees are independent of the Government and their membership includes judges, legal professionals and representatives of voluntary organisations. They are best placed not only to make the rules for authorised staff exercising judicial functions, but to conduct the reviews of these measures in the future. I hope that I have provided the hon. Member for Bolton South East with the assurances that she seeks, and that she will withdraw the new clause.

I thank the Minister for her response, but the Opposition will not withdraw our new clause. I ask that the Question be put.

Question put, That the clause be read a Second time.

In this afternoon’s sitting we will first hear oral evidence from the New Under Ten Fishermen’s Association. Will the witness please introduce himself?

Jerry Percy: Good afternoon. Thank you for inviting me. My name is Jeremy Percy. I am the director of the New Under Ten Fishermen’s Association, the representative body for 80% of the UK fleet, which operates from vessels of less than 10 metres in length.

I shall hand over to the Minister for the first questions.

Q60 This morning we heard in evidence that the principle of relative stability had served the inshore fleet particularly badly because of the data and the absences of data in the ’70s and ’80s when the track record was established. What are the key priorities of the inshore sector as we leave the European Union and set our own domestic policy?

Jerry Percy: We have long argued that relative stability needed to be reviewed, primarily because of the very bad deal that the under-10-metre sector has always had in the UK, not just because of relative stability but because of the way in which quota was allocated back in the ’90s, when we did not have a seat at the table and therefore, despite being nearly 80% of the fleet, ended up with less than 2% of the overall UK quota. Relative stability really does need to change.

Our priorities are, overall, to ensure that the under-10-metre fleet—unquestionably, it has been massively disenfranchised over the past few decades—comes out of it with a significantly increased allocation. We have argued strongly that the current method for allocating quota is unfair and discriminates against the under-10s, and of course the myriad coastal communities they support. I have been in the fishing industry as a fishermen and in other roles off and on for over 40 years, and I have seen the demise of any number of coastal communities, the fleets that they supported and the people who supported them over that period. Our main aim is to ensure that the under-10s specifically get a fair deal come the new horizon.

Q On management, we outlined a number of ideas in the White Paper. Some have suggested that we should move away from a Marine Management Organisation-administered under-10-metre pool and towards a producer organisation for the inshore sector. What is your view of such an approach?

Jerry Percy: You will not be surprised to hear that I am very supportive of the idea, having written the initial paper back in 2012. There is absolutely no doubt about that. To put it into perspective, at the moment I gather that the UK has had infraction proceedings served upon it by the European Commission for failure to manage and regulate its producer organisations adequately. I have not seen the detail but I would have thought that the Commission was concerned that, despite the fact that the coastal PO—the producer organisation dedicated to the under-10-metre sector—has had official recognition by the UK Government and by the Commission for over a year, we are still refused the ability to manage the quota of our own members. This is particularly important with the run-up to the landings obligation, where the ability to acquire quota retrospectively will be vital.

With the greatest respect to the Marine Management Organisation, the disparity between the rationale for MMO management of quota and that by the producer organisations, which are very focused on the commercial benefits of their particular members, is huge. This has resulted in this year to date, for example, in only just over 50% of the under-10-metre quota actually being fished, although that is down to a number of issues. One of them is undoubtedly the inflexibility in the Government trying to manage the quota, so I am particularly supportive of the coastal PO.

I fail to understand why the Government have not permitted us to have exactly the same rights—no more; no fewer—as the existing POs. In fact, in your own words, Sir, in a letter earlier this year, you said that as soon as we had the correct infrastructure in place you would like to see us going ahead and doing this sort of management. We have had the infrastructure in place for a considerable amount of time, yet we are still refused the ability to manage for the benefit of our members.

Q But do you accept that there could be more than one PO covering the inshore sector?

Jerry Percy: I do not think so.

Q You shouldn’t force everyone to join it if they don’t want to.

Jerry Percy: No, there is always a choice about whether you join a producer organisation or not. To be honest, there is absolutely no reason why any under-10 metre vessel even slightly reliant on quota should not join the coastal PO. The membership fee is £1. More importantly, however, membership should give those vessels access to far more flexible and user-oriented management of their quota, rather than the current situation.

Q I have two other points that we raised in the White Paper that I want your views on. First, do you think that the under-10-metre category is still the right criteria to use, or should we look at other measures, such as engine capacity or the zone in which they fish, so that there would be a different way of defining the artisanal, small-scale fleet? Secondly, we have obviously had quite a lot of representations about the possibility of moving more to an effort-based regime for the inshore fleet rather than a quota system. What is your view of that?

Jerry Percy: In response to your first question, there is no doubt that the arbitrary under-10/over-10 metre divider has been an unnecessary nuisance, frankly, especially as time has gone on. Yes, 20 or 30 years there was a very significant difference between what was in the ’90s a much more artisanal fleet and today’s under-10 metre boats, which can be 9.99 metres and highly efficient. One of the purposes of developing the coastal PO initiative was that, rather like other examples one might think about in the current climate, you tend not to go to war with people you are trading with, and there has always been a difference of opinion between under-10s and over-10s and their POs.

Losing the 10-metre measure in the fullness of time would be a very positive step forward. Clearly, if you look at the breakdown of the under-10s, which are some thousands of vessels, you see that the vast majority are less than 8 metres in length, and again you can go down. So there is a strong argument for taking any boat up to 6 metres completely out of the quota system, whether or not you replace it with something like effort management. I can speak from experience. While a modern under-10 metre boat has a very significant fishing capacity, far in excess of what it would have been 20 or 30 years ago, it remains the case that boats that are less than 18 feet would really struggle to make any significant impact on stocks.

At the same time, we have said all the way along that although the effort management suggestion is ostensibly a fairer way of allocating access to the resource than quota, with all its issues and problems, we really need to have a proper, full-scale and focused trial before anybody could say unequivocally, “This would be the most effective and efficient way forward.”

Q A real consensus is emerging around the Bill that there should be more focus on giving more quota—more fishing opportunities—to the smaller boats. The question is about how we do it. From your point of view, what would be the best way within the Bill, and within the powers it contains, to encourage more fishing opportunities to be held by smaller boats, which generally speaking are the least impactful on the environment and contribute more to their coastal communities?

Jerry Percy: There are two main answers to that question. At the moment, despite the claims that we are going to be an independent coastal state and take back control, nearly 50% of the UK’s allocation of quota is held in foreign hands. Now, although a lot of that is the pelagic species, such as mackerel, herring and blue whiting, nevertheless fish quota, whether we like it or not—we do not—has become a commodity and gaining more access and a fairer balance post Brexit, when the Bill comes in, would be a particular opportunity.

There are opportunities. The Government have always been concerned that if you tried to repatriate quota, then you get a whole queue of people lining up for a judicial review, but it was clear from the judicial review in 2012 and from legal advice subsequently that that is entirely practical. In fact, the Faroe Islands has just instigated a similar sort of system. Rather than us arguing that one should rob Peter to pay Paul, it is at heart the allocation system that is at fault. It is based on historical rights.

As I said, I go back far too many years in this business. In the 1990s, the Government said to the over-10-metre vessels, “Go out and fish and record all your catches, and we will take a three-year average and provide you with your fixed quota allocation—your proportion of the overall UK cake.” Not surprisingly—the larger-scale representatives admitted this in the judicial review I mentioned—they did ghost fishing. If you went out and caught 10 tonnes, you might put down 12 or 14 tonnes just to make sure that you had good opportunities. I dare say that if I had been in that position I might have thought the same. The whole thing was predicated on a lie, frankly, and it has gone on ever since. Historical rights are really not an effective method, for any number of reasons.

The answer to your question, which we put forward in our response to the Bill, is that clause 20 effectively takes in article 17 of the common fisheries policy. We suggest that should be amended so that quotas are allocated according to social and environmental criteria and economic benefit for coastal communities. Some 80% of the under-10 metre fleet use passive rather than mobile gear, so their environmental credentials are better, and their economic credentials are certainly more significant. We would take our chances with everybody else, but that would provide a level playing field, irrespective of size of vessel, and your allocation of the resource would be based on environmental, social and economic criteria.

Q This morning I asked about strengthening the economic link, so if you catch fish under a UK quota you should land at least half of it in a UK port. Can you explain where the under-10 fleet—the small boats—mainly land their fish? Do they land it in UK ports already, or is a sizeable portion landed in foreign countries?

Jerry Percy: No, it is almost exclusively landed into UK ports, although of course a very significant element is then exported to markets in France, where our European neighbours tend to pay far more for it. I think it is relevant to mention at this point that, with all due respect, we must not focus just on the quota issue, although that is vital because the quota has been so unfairly dealt out in the past. A very significant proportion of the under-10-metre fleet relies on non-quota species such as cuttlefish, shellfish, lobster and crab, and they in turn rely on direct export. About 90% gets exported, mainly to France and Spain, so the export market is key.

Q Finally, I have a question that is not about quotas—it is about marine safety. The Bill talks about our potentially being able to allocate quota that is drawn down from our EU friends in a slightly different manner from the FQA system we have at the moment, and to apply different conditions to that. You mentioned social, economic and environmental criteria potentially being some of those conditions. Marine safety is an issue for many small boats because of the pressures on those boats and the fact that the 10-metre limit has led to lots of dumpy boats with strength rather than stability. Would you give us a sense of the implications for the sector of amendments to the Bill that introduced a requirement for marine safety to be such a condition, to ensure that people who go out to catch our fish are safe, and tell us what the current safety levels are in the sector?

Jerry Percy: Fishing, unfortunately, still carries the record as the most dangerous occupation in the world. I sit here having lost any number of friends and colleagues over the years in pursuit of fish. I do not think having to carry more fish should be a significant safety issue. It is going to be more relevant in terms of the forthcoming landings obligation, under which we can no longer discard any fish so we have to keep it all aboard. There are of course safety issues in that respect.

The Sea Fish Industry Authority monitors and measures, and ensures that vessels are safe to go to sea. We are effectively talking about capsize as a result of overloading, which is actually quite rare. It is perhaps more common in the pelagic fisheries, where a great bulk of fish is landed. For most small-scale fish fleets, I think fishermen and the authorities would ensure that there was no safety issue. Even in my wildest dreams, safety has never come to mind as being an issue if we had significantly more quota. I have never thought, “Oh, I’m going to catch too much fish and put myself at risk.” It does happen—even now, with non-quota species, you never throw it back.

Q On that point, there seems to be universal agreement that personal locator beacons attached to lifejackets are a good thing, but we know there is a cost to fishermen of buying new lifejackets with PLBs and registering them. Do you think that, if there were a specified improvement on marine safety in the Bill, lifejackets with PLBs could be one area that might make a big improvement in marine safety?

Jerry Percy: Yes. Under the International Labour Organisation’s convention 188, it is now mandatory for fishermen to wear lifejackets unless the owner and/or skipper of the vessel can prove that he has sufficient guards in place to ensure that fishermen do not go over the side.

I still go to sea quite often. I have a personal locator beacon that I bought myself for about £170. It will tell the rescue people where I am in the water anywhere in the world. It is cheap. As far as I understand it, European funding would probably cover it because it is not a mandatory requirement, but surely, in terms of safety, it is a few pounds and it makes all the difference in the world.

Q My question is a variation on the Opposition spokesman’s point. It is commonly recognised that the inshore fleet—the under-10s—has had a raw deal as far as access to quota and fishing opportunities is concerned. The Bill is largely based on the assumption that an increase in opportunities, as a result of taking back control of our waters, will give us an uplift that will provide additional fishing opportunities for the inshore fleet. Do you think that goes far enough, or do we need to look at something bolder and more radical in terms of quota allocation or fishing opportunities?

Jerry Percy: Our main concern is that the Bill is predicated on a successful fisheries Brexit, if I may call it that, with a significant windfall of quota. Again, with the greatest respect, that would get the Government out of the hole that successive Governments have painted themselves into—if I may mix my metaphors—in that because there is only so much in the UK pie of quota, they are somewhat hamstrung, in their view, in their ability to reallocate more fairly and effectively. Not surprisingly, we disagree with that version and there is legal argument that they could do so, albeit slowly—that was said by the judge in a judicial review in 2012.

I gave an answer earlier about moving the method of allocation to become genuinely reliant on the social, environmental and economic criteria, but I do say genuinely because the UK Government are also already subject to article 17 of the common fisheries policy, which says something similar about allocating quota on those three criteria. The Government have argued that they meet those criteria. I personally do not think that they even remotely reach them in many respects. If we are going to have a revised method of allocation, we need an undertaking or to ensure that the Bill does what it says on the tin.

Q Thank you for coming along, Mr Percy. We have heard a lot about control of our own waters, but that has to be set against access to markets, particularly for your members. How confident are you that the interests of your members are fully understood and fully protected by what is in the Bill?

Jerry Percy: I do not think it goes far enough in some respects. Again, going back to the common fisheries point, the European maritime funding document says that member states shall produce an action plan for the development of their small-scale fleets. To date, we have not really seen anything to that extent, and there is nothing specific in the Bill in that respect.

Our main concern is that, from a non-quota, shellfish perspective—this is particularly reflected in our members and colleagues in the Scottish Creel Fishermen’s Federation, who asked me to mention it, which I am more than happy to do—the whole business of hundreds, if not well over 1,000, boats around the west coast especially, and the east coast of Scotland to some extent, as well as Wales and the rest of the UK, is based on seamless transport across the channel to our markets in France and Spain. Their main concern, of course, is that if any issues come up in a post-Brexit scenario where we seek to take back control, not only will we get tariffs, which will make a big difference, but what is more, there will be non-tariff barriers in terms of the requirement for veterinary inspections of live shellfish. At the moment, the only two ports with those facilities are Dunkirk and Rotterdam, neither of which we use and neither of which, effectively, is a Channel port. To date, the French have not exactly been quick off the mark in building new facilities in time for next year.

We are equally concerned about the fact that French fishermen, like French farmers, are renowned for taking very direct action should they feel that something has upset them. You will remember that when the French farmers got upset about some aspect of Welsh lamb exports, they actually burned the lorries as they came off the ferry in France. We are very concerned that if we do have an independent coastal state, and so on and so forth, it would kill that transport overnight. We only need a few hours’ delay for it to make all the difference in the world.

Q As the Member for Argyll and Bute, I take on board what you are saying. We are absolutely dependent on speed of access to market. What should we in this Committee be looking at over the next few weeks to ensure that vital shellfish market remains open and there is that speed of delivery from Loch Fyne to Madrid, for example? How do we ensure that that is as seamless as possible, and that we keep those vitally important markets?

Jerry Percy: There has to be a balance in the negotiations, permitting some level of access to our waters—although much less than currently—to ensure that we do not have those non-tariff barriers, and that the facilities, including on the French side, permit us to have that seamless transport and that there are no road blocks in the meantime.

Q On access to market versus access to waters, I think you mentioned that there would be some exchange of access for quota in any future arrangement. I presume you would agree that it is important that, as an independent coastal state, we have full control of that access so that we can use it as leverage. I hesitate to use the phrase “bargaining chip”, but when we go into future annual negotiations, that has to be the leverage that we have.

Jerry Percy: Absolutely. We should start with a clean sheet: “We are an independent coastal state. That’s that.” We have a clean sheet and nobody has the right of access. Then there will inevitably be negotiations and bargaining, and that balance is going to be extremely difficult, because Mr Macron, the Commission and others have already made clear that they want the status quo to be the basis of any further negotiation. The Government will have their work cut out to try to sort that out.

Q Is there anything in this Bill that you think we should focus on, in order to add more power to our elbow in those future negotiations?

Jerry Percy: Our concern about the Bill is that there are a lot of phrases in it like “intend to”, “will consider”, “could include”, “aim to”, or “DEFRA intends to be”. There is not a great deal of certainty about some elements on which we would have liked to have seen more certainty and absolutely unequivocal statements: “We will do this.” The Government have made it clear to date that they want an unequivocally clean sheet start. Whether we actually achieve that, of course, is open to significant debate.

Q One more question, if I may. Going back to what you were saying earlier, I think your exact words were along the lines of “Unfortunately, quotas have become a commodity.” With quotas being sellable and buyable, they are an asset, at least. If quotas were to be more fairly distributed among the smaller vessels in future, how would you avoid them just becoming sellable commodities, bought up by others?

Jerry Percy: There are a number of global examples where you can retain quota as a national resource without allowing its sale. There obviously needs to be flexibility in-year to move quota about, to ensure that those people benefit from it. It is not an easy situation to resolve, but there are global examples of what can be done to ensure that almost half of our national resource is not in foreign hands, as has happened here.

Q I represent Hartlepool, which is one of those coastal communities affected long ago by unfair quotas for under-10s. There is an argument that our industry could be revived if fairer quotas were allocated. In your opinion, how many ports would benefit from an uplift in quotas?

Jerry Percy: It is not just ports; there are harbours, coves, small areas and small coastal communities. It would be dozens, if not hundreds. Going back 40-odd years, I can remember fishing out of Lowestoft as a boy fisherman. There were myriad groups of small boats all the way up and down the coast, all providing a significant benefit to those local communities. They may not show up on an economist’s spreadsheet, but those people are nevertheless paying their mortgage, taking their kids to school and keeping the local infrastructure going. I am not exaggerating; it could certainly be in the hundreds that we could revive and have some level of renaissance. There is no doubt whatever.

Q I get the impression from representatives from the larger fleets that they would oppose quota redistribution. What arguments are there against that?

Jerry Percy: Well, why should they get more? To an extent, it is based on greed. They already have approximately 98% of access to the quota, 50% of which is in foreign hands, and a very significant proportion is in the hands of the five richest families in this country. It has become a fundamental nonsense and is grossly unfair socially, environmentally and economically that nearly 80% of the fleet in the UK has access to only 2% of the quota. The idea or argument that any additional quota should be allocated according to the existing fixed quota allocations frankly is just grossly unfair. There is no sensible economic or social reason why that should be the case.

Does any other Government Member wish to ask a question?

Q Thank you very much, Mr Hanson. I am very interested in what you said about 50% of the quota being in foreign hands. Is there an example, as far as you are aware, of any EU coastal state that makes better use of the common fisheries policy for under-10 metres or smaller boats, or is it just universal that it is dominated by large vessels?

Jerry Percy: You could say that across Europe the scene is dominated by the larger scale vessels. They have more resources, more PR companies and more paid lobbyists; they were at the table when the rules were set, and we were not. It is only in recent times—NUTFA was created in 2006—that we have had actually had a voice, and it takes time to build up. Hopefully with the Fisheries Bill we are now on an equal footing with a seat at the table to ensure that the 80% of the fleet gets a fair deal.

Q Briefly, I want to explore with you how we get from here to there. As you say, there is a case for the redistribution of quota. I am very interested in your thoughts about how you stop quota or other management tools from becoming a tradeable commodity. As you say, some of these interests are big and well resourced. Rich people have good lawyers and a legitimate expectation in their property rights. How do you get to the point where you can change the nature of quota?

Jerry Percy: By negotiation, but our response to the Fisheries Bill was the first step. We are particularly concerned that there is a suggestion within the Bill that an element of the UK’s fishing opportunities should be put up for auction. I struggle to understand the logic in that when the whole thrust is in terms of environmental, social and economic criteria. The Government Minister identified the fact that we need to support and enhance the small-scale fleet for all the very tangible benefits that are there to be taken. I struggle to understand why you would then take a piece and sell it off to what will inevitably be those who already have financial resources. If we are going to have flexibility in the quota, we need to bring in new entrants and we need to make it attractive. The cost of quota is one of those significant areas that keeps out new and young entrants.

Q So the idea of auction does not recommend itself to you.

Jerry Percy: Anything but, sir.

We have 35 seconds if anyone has a one-word question and a one-word answer. Is there anything else you wish to say to the Committee, Mr Percy?

Jerry Percy: Thank you for the inquiry. The Fisheries Bill gives us an opportunity. There are some failings in it, but we seriously look forward to conversations with Government and others in that respect. I am grateful for the opportunity to talk to you.

Examination of Witness

Phil Haslam gave evidence.

Good afternoon, Mr Haslam. For the benefit of the Committee, could you introduce yourself and your organisation?

Phil Haslam: Good afternoon. My name is Phil Haslam and I am the operations director of the Marine Management Organisation, which is an arm’s length body of the Department for Environment, Food and Rural Affairs with the competence to deliver marine planning and licensing and, in this context, fisheries management, control and enforcement regulation.

Q I am sure that the Committee will have noticed from your biography that you have long experience in the fisheries protection fleet and the Royal Navy, and most recently at the MMO. Before getting on to the work we have done on future enforcement, I wonder whether you could describe to the Committee what the MMO control room in Newcastle does, how we monitor fishing vessels and how many fisheries protection vessels we currently have access to.

Phil Haslam: The mechanism we use to conduct fisheries control and enforcement is risk-based and intelligence-led. The mechanism by which we do that ashore is to have up to 75 warranted officers who can be deployed—routinely, circa 50 are able to be deployed—and we are situated at 14 offices around the coast of England. The MMO regulates only within English waters. That is one element of our business: shore-based inspections of landing, marketplace inspections and the like. The risk-based, intelligence-led description is basically what it says. We understand where risk may arise and we have a level of intelligence that we apply to that, which can make our operations targeted.

At sea, our surveillance is conducted by vessels from the Royal Navy fishery protection squadron, which we contract on an annual basis for a set number of hours. They conduct patrol and inspection routines on our behalf on the direction of the Newcastle fisheries monitoring centre ops room. The way that works operationally is that we direct them to conduct a patrol in a certain area, we direct the outcomes we wish to see, and then it is down to the commanding officer in the vessel to deliver them. On the number of ships that are available to us, both because of budgetary restraint or constraint within the MMO and the availability of Royal Navy vessels, the Royal Navy is this year providing 2,000 hours of patrol time within English waters.

Q I understand that at the moment there are three offshore patrol vessels, two of which are normally on duty in English waters. Could you explain what has taken place, as part of your planning over the last year for enforcement after we leave the EU, to get additional offshore patrol vessels from the Royal Navy? What discussions have been had and what work has been done with Border Force on the ability to redeploy some of its assets? Could you explain anything you have done by way of procuring aerial surveillance from, say, the coastguard service?

Phil Haslam: As a result of the referendum and the fact that we will be becoming an independent coastal state and taking back control of our waters in the future, a risk-based analysis has been done of what could happen after that exit moment, and based on that analysis we have identified increased risk across the piece. Our work has driven us to look at our current surveillance levels and to judge what we will need to effectively enforce the integrity of the exclusive economic zone from the fisheries point of view. That has led us to bid for an uplift in surface surveillance and within that to move away from having all our eggs in one basket in relation to the Royal Navy, to come to a mixed economy of providers for both the inshore and the offshore element of the patrol requirement.

We have come up with a greater amount of surface surveillance that we need in the round, and the mechanism to deliver that will of course include the Royal Navy. We have dialogue with Border Force as well, to see what utility there is within its vessel fleet—it is predominantly its cutters. Similarly, the inshore fisheries and conservation authorities, which are the small English-based regional organisations that have a jurisdiction of the nought to 6 miles of inshore fisheries, have a fleet of vessels that we may be able to get some utility out of. Also, we are speaking with colleagues in the devolved Administrations to see what utilities are there. We are trying to get a blended provision of surface surveillance.

Aerial surveillance is a capability that is being reintroduced. The idea is to have routine overflight of our waters so that, should there be vessels that should not be there and are not discernible through remote location devices, we have, basically, a set of eyes in the air that can see them. In terms of monitoring vessels at sea at present, there is a system called the vessels monitoring system, which gives us the position statement of vessels of 12 metres or longer.

Q Finally, the Ministry of Defence recently announced that it had delayed the decommissioning of the existing three offshore patrol vessels, and it intends to introduce four new ones, I think. How much difference will having that extra capacity in reserve make, should it be needed?

Phil Haslam: It will make an enormous difference. As you stated earlier, at the moment the fishery protection squadron is relatively constrained in the number of vessels it can put to sea, and that matches our constraint in being able to contract them. Having more vessels available to us to police a very large EEZ gives us that flexibility to deploy ships to the right place at the right time. By keeping the batch one offshore patrol vessels in service for longer and introducing the batch twos incrementally, as they come off the build, there will be a larger hand of cards to be played with.

Q I have one other final point. Enforcement is obviously devolved, so what you have described is what is taking place and what is planned for in England. Could you describe how the challenge differs, for instance in Scotland, where we obviously have a large interest? What work do we do with Marine Scotland and its enforcement vessels?

Phil Haslam: Fisheries enforcement is devolved, as you state. The way the Scottish do it is to have three vessels that conduct enforcement up to 330 days a year within their waters. They contract two aircraft as well, to provide oversight. At this moment, they have the kind of surveillance capability and control and enforcement capability that we are building up to.

Q A moment ago you gave the figure of 2,000 hours of surveillance. Could you give us a sense of how the number of hours that have been deployed for enforcement has changed since 2010?

Phil Haslam: Yes. Royal Navy vessels used to be contracted on a 24-hour-day basis. That was always non-exclusive, so they were not passed to the MMO, where we would have command and control of them; they would conduct our business but always with the risk of higher priority national tasking taking them away. But we did have more of them in 2010, and over time, with reductions in the MMO budget, we have had to roll back the number of hours, or days, we can contract, moving from 24-hour days to 12-hour days and then to nine-hour days.

When I came into this job we were relatively constrained regarding where we could deploy them for that part of the day. The idea of going to hours was to give us the flexibility to deploy them where the need was, rather than where they were shackled. So there has been a reduction, but on the other side of that, with the vessel monitoring system we have an understanding of what is going on in our waters. We have a picture against which we can patrol. So it was risk-based.

Q The figures I have seen suggest that in 2010 there were 16,000 hours, and now we have 2,000. That trajectory, that path, that reduction of enforcement, at a time when we will probably, based on risk assessments, need to protect and enforce our waters to a greater extent than in the past, concerns me. It seems quite a challenge. What is your assessment of whether we will see more things like the scallop wars, not in French waters but in UK waters, after Brexit? Do you think sufficient resource is provided to ensure that UK waters are kept safe and protected and that our regulations are properly enforced?

Phil Haslam: There is always a risk of tensions unearthing themselves within a fishing thing, but I must say that what we saw with the baie de Seine scallop wars was an expression of discontent based on using fishing vessel rather than on non-compliance with fisheries regulation, which is what the MMO does. There is a risk—that is the risk we have analysed—and against that risk we have built a bid for increased surveillance to meet and mitigate it.

Q The Batch 2 River class that you are getting as part of the fishery patrol vessels are very capable ships, and not having the Batch ones retired is a good move. That total fleet, though, relies on numbers of people to put them to sea and we know that there is huge pressure within the Royal Navy to provide people. Given your former experience with the Fishery Protection Squadron, could you enlighten us a little bit? Having more hulls is a good thing, but is there a sufficient number of people to man those hulls to ensure that we have the necessary enforcement capacity?

Phil Haslam: We have to be careful. The vessels the Royal Navy deploys to meet any MMO contract that is signed in the future is within its gift. It may be Batch 2s or Batch 1s, but that is the call of the commander of the squadron. In terms of manning the ships, it is similar. If the demand is there and it is required, the Royal Navy, being as innovative as it is, will come up with manning solutions to meet what it needs to do.

Q Finally, you mentioned the consultation on inshore vessel monitoring systems. It seems to be a good thing to switch from an automatic identification system. Anecdotal evidence suggests that fishermen turn their AIS off if they find fish so as not to alert their friends as to where there is a good catch, but I-VMS does not come with that switch. Is that right? Can you explain what difference that would make to vessel monitoring with regard to enforcement and safety?

Phil Haslam: The automatic information system, which is fitted to vessels of 300 gross tonnage and above is predominantly an anti-collision device. It is to create situational awareness at sea. It is an open-source mechanism by which you can find out information about any given ship, where it is going and what type it is. In fishing, a fisherman’s mark of where he is fishing and what he is getting from it is commercially sensitive and we would not wish to openly display that. I-VMS—the inshore vessel monitoring system—is a similar system to the one on smaller vessels. It gives us a picture of what is going on within the fishery. To conduct a fishery, you need to know what the input is so that you can control the output. That is not something we have at the moment. Also, it covers off that commercial sensitivity. We are not transmitting where a fisherman is. There is a point-to-point transmission of that data, which we will take into a hub so that we have a picture of what is going on in our waters, but that is not widely accessible.