Examination of Witnesses (Questions 1-19)
4 DECEMBER 2003
MR BEN
BRADSHAW MP, MR
GEORGE NOBLE,
MR STEPHEN
WENTWORTH, MR
IAN PICKARD
AND MS
ELISABETH JENKINSON
Q1 Chairman: Minister, welcome to the
European Scrutiny Committee. We were just discussing before you
came in whether there had ever been a minister appearing before
the Scrutiny Committee who had previously been a member of the
Scrutiny Committee. I think this is the first occasion we have
had a minister visit us who has been a former member of the Committee
and because you are a former member you will be very relaxed,
because you know how we operate and you will probably have been
looking forward to this, as we have. Could I invite you to introduce
your colleagues, please?
Mr Bradshaw: On my immediate right
is Stephen Wentworth who is Defra's Director of Fisheries, on
his right is George Noble who is the Head of Defra's Animal Welfare
Division, on my left is Ian Pickard who is the Head of Future
of Europe Branch in our European Union Agriculture and Co-ordination
Division and who has been responsible for co-ordinating our Department's
input to the new EU Constitutional Treaty, and on his left is
Elisabeth Jenkinson from Defra's Legal Department who has been
advising on the draft Constitution. It is a pleasure to be back.
Q2 Chairman: It is a pleasure to have
you back, Minister, and I genuinely mean that. A few people have
left this Committee and gone on to higher places and you are one
of them, so we are very pleased about that and glad to have you.
Article 12(1) of the draft Constitutional Treaty makes the conservation
of marine biological resources an exclusive competence, with the
result that the UK will have no power to adopt conservation measures
even within its coastal and inshore waters. Are you content with
this provision?
Mr Bradshaw: I do not accept the
premise of your question, Mr Chairman. There is actually no change
to the EU competence on fisheries recommended in the draft Constitution.
If I can perhaps quote from our original Act of Accession back
in the 1970s which made it quite clear: "The Council, acting
on a proposal from the Commission, shall determine conditions
for fishing with a view to ensuring the protection of the fishing
grounds and conservation of the biological resources of the sea."
Marine conservation has always been an exclusive competence of
the European Union. That does not mean to say that the United
Kingdom is not free to act in a number of areas and I can go on
to list those, but your Committee might find it helpful if I leave
you a copy of a letter that the Foreign Secretary wrote in response
to one from the honourable Member for Banff and Buchan back in
August when he made exactly the same point and he has written
a great long letter listing all the areas where we will still
be free, as we always have been, to take conservation measures.[1]
Chairman: That would be helpful, Minister,
thank you.
Q3 Angus Robertson: Welcome to the Committee,
Minister. I have got a long briefing document from the House of
Commons' Library which goes through various items of agricultural
policy which are exclusive to the European Union. I am interested
as to why there are no exclusive competences in the field of agriculture
listed in Article 12 yet fishing is?
Mr Bradshaw: I do not know. I
am not responsible for agriculture, Mr Chairman, but I am happy
to write to the honourable Member and to your Committee on that.
I do not know if any of my officials who have been involved in
the agricultural discussions can answer that question.
Mr Pickard: The question of shared
competence is in a sense an objective distinction which is very
clearly different from exclusive competence exercised by the Community.
In areas of shared competence Member States have the right to
propose and make their own laws in areas where the Community has
not done so, but the fact that the Community does so does not
take away that distinction and it does not make it an exclusive
competence area. It remains an area of shared competence in which
the Community has acted and in that sense has restricted the ability
of Member States to make proposals and legislation themselves,
(but it does say that in those areas the Member State could have
powers and make legislation proposals where the Community has
ceased to exercise competence). So it is not a sensible idea to
say they have now exercised competence so we must treat that as
exclusive—because that takes away the opportunity that they
might no longer use that competence and that would then fall back
to Member States.
Q4 Angus Robertson: That is all very
interesting, but I have asked this question of the Leader of the
House who was the Government's representative on the Convention
and it seems that there is a different treatment of different
policy areas within the draft Constitution and, with the greatest
of respect, I do not think I have had an answer as to why is it
that elements of policy relating to agriculture, which are currently
exclusive, are being treated differently with respect to fisheries,
which is one of the four areas of exclusive competences within
the draft Constitution. This seems pretty important. Why is one
policy area being treated differently from another?
Mr Bradshaw: I do not think they
are, Mr Chairman. I am not qualified to talk about agriculture,
but what I am qualified to say is there has been no change on
fisheries and my understanding is there has been no change in
terms of competence in the Treaty as a whole.
Q5 Angus Robertson: This is a follow-up
question in terms of the genesis of why certain things are in
the Constitution and why certain things are not and how the UK
Government has dealt with this, and I know the Minister sitting
here today is not directly responsible for this but perhaps his
advisers would be able to help the Committee in understanding
this. I have long had a concern about this issue and it is a concern
that the Committee has also had in its reports about this issue,
and one of the reasons why I have had concerns about this is that
when I asked the Minister for Fisheries on 4 June, at a meeting
that I attended with fisheries representatives from around the
UK, about the UK Government's view on this very issue he said
to me that he did not know anything about it and he advised me
to go to the Foreign Office and speak to them about it. It seems
to me that there is a very robust line coming from the Minister
and yet only a few months ago there seemed to be absolute ignorance
about what it was all about. Can you shed some light on why there
is now a much stronger line coming out of the Department than
previously?
Mr Bradshaw: I do not understand
the premise of your question.
Q6 Angus Robertson: The Convention started
in February of this year, so this issue was a matter of discussion
and debate from February. Between February and June obviously
the Fisheries Minister had absolutely no involvement or discussion
or debate about the role of fisheries within the draft Constitution.
Why is it that he knew nothing on 4 June about this?
Mr Bradshaw: I only became fisheries
Minister in July, Mr Chairman.
Q7 Mr Heathcoat-Amory: The document that
defines competencies—at the minute it is a Treaty, obviously—and
Articles 32 to 38 on agriculture, which include fisheries now,
do not claim an exclusive competence over conservation matters,
nor can I find it anywhere else in the Treaties. The draft Constitution
does claim in unambiguous terms and the definition of a shared
competence is that Member States cannot legislate at all in this
area without permission, so there has been a change in the Treaties.
The Minister said that there were certain areas where we would
have an ability to legislate notwithstanding the claim of exclusive
competence. Perhaps he could give us some examples of where it
will not be exclusive.
Mr Bradshaw: I will happily do
that, Mr Chairman. The copy of the latest draft of the Treaty
that I have specifically refers under "areas of exclusive
competence" to the conservation of marine biological resources
under the Common Fisheries Policy, which is the same as the language
I quoted from our Act of Accession back in the 1970s.
Q8 Mr Heathcoat-Amory: Can we have a
reference, which Article?
Mr Bradshaw: This is Article 12(1).
Q9 Mr Heathcoat-Amory: That is in the
Constitution. I am asking where it is claimed in the Treaties?
Mr Bradshaw: In the existing Treaties?
It is Article 102 of our Accession Treaty.
Q10 Mr Heathcoat-Amory: I am not talking
about the Accession Treaty. I will ask the question again. This
is the Treaty that defines Member States' competence in this area
and the relevant Articles I gave before. There is a change between
that and the draft Constitution which the Minister, quite rightly,
referred to, it is Article 12, it is a change in exclusive competence
and yet the Minister is saying there has been no change. I want
him to point out where the saying "exclusive competence"
is asserted in the Treaties.
Mr Bradshaw: I may ask one of
my officials if they know the answer to that. I think the point
remains that there is no change of competence when it comes to
fisheries policy proposed in the draft Treaty, it is exactly the
same as it has always been, that is the exclusive competence on
conservation rests with the European Union and shared competence
is in all other areas of policy. If I can quote from the letter
I referred to earlier that the Foreign Secretary wrote to the
honourable Member for Banff and Buchan: "Examples of where
the UK could act independently, even in the exclusive competence
field, include the ability to take non-discriminatory conservation
measures up to 12 miles offshore, the right to take temporary
emergency conservation measures where there is evidence of serious
and unforeseen threat to the conservation of living aquatic resources,
the right to request the Commission to take emergency conservation
measures,"—as we did recently for the deep sea coral
reefs off the Darwin Mounds—"the ability to take conservation
and management measures in all waters provided they are applicable
solely to UK flagged vessels." In the field of shared competence
the examples of where the UK can act independently include the
authority to restrict fishing by non-UK vessels in waters up to
12 miles offshore, to vessels that traditionally fish in those
waters, only UK vessels are allowed to fish within six miles,
UK controlled and enforcement, including licensing and penalties,
measures for the management of UK fleet capacity and representation
of UK overseas territories in regional fisheries organisations.
There is a lot more than that, Mr Chairman, and I am happy to
leave you that letter.
Q11 Mr Heathcoat-Amory: The Minister
mentioned the 12 mile limit and it is true that a Council regulation
dated 20 December 2002 gives us the ability to take conservation
measures within the 12 mile limit, but that regulation is derived
from the existing Treaty. There is no reference to the 12 mile
limit or those permissive derogations in the draft Constitution
so how can the Minister be certain that that regulation will not
be repealed and replaced with something under the Constitution
that does not refer in any way to a national 12 mile limit?
Mr Bradshaw: That could happen
now if there was agreement within the Common Fisheries Policy,
but it does not change as a result of the draft Constitutional
Treaty.
Q12 Mr Connarty: It is quite clear that
the Minister is defending the position that was there before because
he thinks that is perfectly adequate. I hope it has been registered
from some quarters, particularly in Scotland, that people do not
think the present provision is adequate and this was a chance
to amend our position. We have had a similar discussion about
energy where some would argue all that was happening in the Energy
Chapter is a restatement of policy and that restatement of policy
had caused great concern to the oil and gas industry. Clearly
the debate that has been going on for some time is that the present
competence arrangement is of grave concern to people in the fisheries
industry and people believe that their economy, particularly the
Scottish economy, has been damaged by that competence. It does
seem that we are in a position where, since it is attached to
the Common Fisheries Policy, it could either increase or decrease
the interpretation of that exclusive right at any time. Does the
Minister agree with that? He seemed to say so in his last reply.
Does he not think that, similar to energy policy, we should have
asked for some strong belt and braces measures to safeguard the
arrangements that allow that exclusivity to be modified?
Mr Bradshaw: No. What I am keen
to do, Mr Chairman, is to address some of the myths that have
been spread, particularly in Scotland, by the Conservative Party
and the Scottish Nationalists that this Treaty is about increasing
or expanding European competence on fisheries; it is not. We know
why they are spreading these myths. It is because both those parties'
official policy is to leave the Common Fisheries Policy—I
do not know if anyone has seen the Leader of the Tory Party, he
is supposed to be lunching today with "friendly" centre
right parties in Paris—and they see anything like this in
that light. I happen to believe and the party that my honourable
friend represents happens to believe that to leave the common
fisheries policy as those parties suggest would be absolutely
devastating to our fishing industry and would not be without us
leaving the European Union as a whole and that is why I am trying
to be absolutely clear about this, to nail this myth once and
for all.
Q13 Mr Connarty: I am very pleased for
the Minister to do this and I am glad he has got it off his chest.
The point is we still have a duty to perform on the Scrutiny Committee.
Is there not a better deal you can get for the UK under the present
policy? It does seem to me that there is something odd about the
scope of the exclusive competence over conservation of marine
biological resources as defined by the reference to the Common
Fisheries Policy which is the shared competence. It does seem
to me that that shared competence can be removed because the Commission
v United Kingdom judgment actually said, "Member States
are therefore no longer entitled to exercise any powers of their
own in the matter of conservation matters in the waters under
their jurisdiction." Do you agree that if that was to be
interpreted entirely without any exclusions being allowed—and
it could have been, that is my point—we could lose some
conservation controls that we have at the moment and the EU could
assume entire control of those matters?
Mr Bradshaw: I think the honourable
gentleman makes my point for me, that as we are at the moment
the European Union has exclusive competence over marine conservation
issues. That does not mean to say that the UK cannot at the moment
and will not in future be able to take certain measures. He is
absolutely right, it is possible for the UK Government to fight
for better deals for their own fishing industry, which is something
we try to do regularly at annual Council meetings. He will be
aware that, led by the EU, the European Commission instigated
probably the most radical overhaul of the Common Fisheries Policy
we have seen in a generation at last December's Council which
we think puts the Common Fisheries Policy on a much more sensible,
environmentally sustainable footing and one which will guarantee
a sustainable and profitable future for our fishing industry.
That is the way to fight for our fishing communities, not to pedal
this false hope that somehow all of their problems are going to
be resolved if we withdraw from the Common Fisheries Policy, as
is proposed by the Scottish Nationalists.
Q14 Mr Steen: It is delightful to see
you in the ministerial seat bearing in mind you started off here
as a modest backbencher around this table. I have, as you know,
the second-largest fishing port in England and Wales in my constituency.
I do not think many of the fishermen are terribly enamoured by
the Common Fisheries Policy. What they keep saying is "It's
our fish. Why don't we have a share of the trees in Scandinavia?
Why don't we have a share of the coal in Germany? Why do they
have a go at our fish?" You said a moment ago that if we
left the Common Fisheries Policy it would be disastrous and I
could not understand why.
Mr Bradshaw: I am not sure whether
the honourable gentleman is saying that he is a supporter of his
party's official policy on this, I suspect he is not. One of the
reasons is that fish, unlike trees, move around, Mr Chairman,
and they are no respecter of national boundaries. Were we to try,
which I have already indicated would be difficult without leaving
the European Union as a whole, to leave the Common Fisheries Policy
we would then have to renegotiate all of those agreements that
we make as a member of the Common Fisheries Policy with the individual
countries that we share our waters and fisheries with, who have
an historical record of catching in our waters, as we do in theirs
and we would, on top of that, be trying to negotiate with non-EU
fisheries nations like the Faeroese, Norway and Iceland on our
own. Does anybody here honestly think that an isolated future
government of whatever political colour that has narked the whole
of the rest of Europe off by trying to leave the Common Fisheries
Policy is going to be able to achieve a better deal on behalf
of our fishermen than we can at the moment through constructive
engagement? I do not think so and I do not think the honourable
gentleman thinks so either.
Q15 Mr Steen: We also have crabs and
lobsters along the South Devon coast. They are running a very
successful business down there. I am not clear whether the Commission
v United Kingdom judgment in 1981 means that the EU can actually
dictate to the crab and lobster fishing industry bearing in mind
it is all inshore.
Mr Bradshaw: No, it is not laid
down in the Treaty, but the regulations can be set amongst European
Union members. One of the things that some of the Euro-sceptics
have constantly said is that we would lose control over our six
mile limit and semi-control of our 12 mile limit. We have not
done that just as we have not lost control over relative stability
which protects our share of the fisheries that we have had historically.
It is very nice to hear a fisheries MP and particularly a Conservative
one highlight one area of our fisheries which is doing extremely
well under the Common Fisheries Policy, namely our booming crab
and lobster industry which is not only doing wonders for the economy
of the south-west but it is also earning us a great deal of money
in exports.
Q16 Mr Heathcoat-Amory: We have got to
get to the bottom of this 12 mile limit and the inshore fishing
point. The Minister said that under the proposed Constitution
our right to take conservation measures in the 12 mile limit will
be preserved and in defence of that he referred to some existing
regulations, but that is not the point. In the text we have before
us there is no assurance that the Union will not claim exclusive
competence right up to the shoreline and if they have exclusive
competence, as it says quite clearly here, we do not. I would
like him to confirm that. In the light of that how can he assert
so confidently that existing rights to preserve crabs and lobsters
and other species up to our shoreline will be preserved? I am
perfectly well aware that they are under existing regulations,
that is not the question. The question is whether the draft Constitution
preserves those rights in a clear manner. I would be grateful,
rather than making generalised comments about political motives
which are completely gratuitous on this Committee, we want to
get at the facts, if you would clearly answer that question.
Mr Bradshaw: The simple answer
is the existing Treaty does not guarantee the protection of those
rights. What guarantees the protection of those rights is no support
for ending those rights within the European Union and within Europe
there is absolutely no prospect of other countries giving up their
exclusive rights to their six mile limits until that is a practical
case. There is no change from the existing Treaties in this Constitution
whatsoever that impacts on our rights to our six or 12 mile limits.
Q17 Mr Connarty: Where people wanted
to get copper-bottomed guarantees they changed the wording. They
did not just take what was in previous Treaties and stick it in
the new Constitution, they tried to make it better. Some would
argue that some people have tried to make fast and loose with
it by taking powers that were not in previous Treaties and sticking
them in. It does seem, given the deep concern, that this could
be an opportunity to try to do something that advanced our position.
Are you really saying that you did not think we needed to advance
the position, you think that ad hoc-ery is alright? It
seems ad hoc arrangements are what we have. We have arrangements
which are suited to everyone at this moment, but they may not
be suited to a number of countries in the future and we may lose
out. Could this not have been an opportunity to do something which
took a bit back for the British fishing industry or do you not
think we are required to do so? Why have we not tried to improve
our position in this Constitution and just accepted what was there
before?
Mr Bradshaw: I do not accept the
fact that just because you are not putting regulations that exist
into a new Treaty means that you are going to end up with the
worst situation on the grounds that there is a will within the
European Union specifically at the moment to reform the Common
Fisheries Policy, which I accept, and I think most people in this
room accept, has not served our fishing industry or the interests
of the rest of the European Union's fishing industry or our fish
stocks well, but that reform is already under way regardless of
what is or what is not going to be in the new Treaty. I think
the fundamental issue here is a great who-ha has been made by
some, which I believe is politically motivated, to try and convince
people that there is some great change involved in this proposed
Constitutional Treaty regarding fisheries. This is a question
that I have been asked ad nauseam particularly by members
of the Scottish National Party who have been trying to exploit
the difficulties that the Scottish industry are in at a time when
we are doing our very best to get the best deal we can on the
Council for the Scottish fishing industry and at a time when this
Prime Minister has, for the first time in 30 years, ordered a
massive strategic review of our fishing industry which will be
published in January. So the implication of your question that
the Government is not concerned about getting a better deal for
our fishing industry is simply wrong. We are working hard at that
all the time, but it has to be on a sustainable basis. It is no
good saying you can carry on catching all the cod there are when
the cod are dying out. It is simply unsustainable and it is a
cruel deception on the industry.
Q18 Angus Robertson: I must confess that
I am rather disappointed that the Minister has descended to petty
partisanship now three times whilst giving evidence whilst, unfortunately,
not answering some of the key questions that we have put to him.
I would like to ask the Minister what assurances he is able to
give to fishing communities about the status of relative stability
and what will happen to the likes of the Shetland, the Irish and
other arrangements? What advice has he received and what detailed
assurances can go on the record so that people in fishing communities
know what impact there might be on their livelihoods?
Mr Bradshaw: I am sorry that the
honourable gentleman, who I know to be a pro European, has picked
up this issue and run with it for not the best motives. There
is no prospect of relative stability within the Common Fisheries
Policy being weakened or abolished unless there was a majority
of Common Fisheries Policy members wanting it to happen and they
do not. The only country I am aware wants it to happen at the
moment is Spain. Spain is in a minority of one. It is not in the
interests either of the Common Fisheries Policy or of the Member
States to change that and it is something that time and time again
the Europhobes have raised as a kind of potential disaster for
our fishing industry and it has never happened. Successive governments
have managed to defend it and I am confident we will continue
to do so.
Q19 Mr Heathcoat-Amory: The Minister
was going to get some additional help from his legal adviser.
We have established that there is no legal protection for inshore
fishing and it is now just a political aspiration.
Mr Bradshaw: There is legal protection
under the regulations but not under the existing Treaty.
1 Letter not printed. Back
| 
