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Memorandum submitted by Shellfish Association of
For the Attention of Marine and Coastal Access
Bill Public Bill Committee Subject: Proposed Government Amendments to the Sea Fisheries (Shellfish) Act (1967)
1. Summary
2. This Memorandum has been submitted on behalf of the UK shellfish farming industry by the Shellfish Association of Great Britain (SAGB). The Memorandum is a response to amendments proposed by the Minister to the Sea Fisheries (Shellfish) Act 1967 which will be made through the Marine and Coastal Access Bill.
3. The SAGB understand that under normal circumstances the Committee would not consider Memoranda that are submitted after the Committee has begun its business. We regret that we were unable to conform to established practice because the Government did not inform us, the industry's national trade association, of the wording of the Minister's proposed amendments until after the Committee had begun its work on this Bill.
4. In an effort to protect the future of the UK's shellfish farming and to expedite the work of this Committee, the SAGB's team of expert and legal advisers has worked over the weekend to prepare some amendments which we now respectfully submit to the Committee.
5. We have prepared these amendments because we are concerned that the Minister's proposed amendments to the Sea Fisheries (Shellfish) Act will severely undermine the legal protection that this Act and its predecessor 1888 Act have provided to shellfish farmers for over a century.
6. We hope that our amendments will maintain the protection that is vital to the UK's shellfish farmers that their businesses and that an industry valued at £22M a year will continue to flourish. The industry's view of the Minister's proposals as they stand is that while they will cure the problems that have been ailing the Shellfish Act in recent years, his amendments will also kill the patient.
7. Our proposals fall into three broad categories, listed below and set out in further detail in the following pages of this Memorandum.
A. Criteria for consideration by the Minister; B. The scope of any compensation payments; and C. The need for consultation. 8.
A. Criteria for consideration by the Minister
9. It is proposed that certain clearly specified criteria should be added to the amendment which will set out the factors for the Minister to take into account when exercising the power to vary or amend orders made under the Act. This would bring the amendments into line with other mechanisms whereby a Minister can vary a permission that affects businesses (such as, for instance, the variation of a restrictive covenant under the Law of Property Act (see S. 84(1))).
10. Unless these criteria are clearly and explicitly set out in the Act, then neither the Minister, nor the person applying to vary an order, nor the person who has been granted the order will have clear certainty as to the meaning or intention of the Minister's proposed amendments. The resulting confusion may prove profitable for the legal profession but will be no good for the businesses operating around our coasts, whether they are farming shellfish or wishing to construct new developments in shellfish farming areas.
11. Our proposals are:-
12. Add to proposed subsection (10), after "may":
"if he is satisfied that the proposed development should proceed having considered the criteria set out in subsection (15) below";
13. Delete proposed amendment at Clause 197, page 124, line 14. and replace by adding a new subsection (15):
"(15) The criteria to be taken into account by the Minister in considering the exercise of his discretion under subsection (10) above shall include:
(a) Where the proposed order relates to any portion of the sea shore belonging to Her Majesty in right of the Crown, the appropriate Minister shall also have regard to the powers and duties of the Crown Estate Commissioners under the Crown Estate Act 1961.
(b) the importance of maintaining and promoting a long term sustainable fishery in the area;
(c) the levels of investment in the fishery and the extent to which that investment will not be recoverable if the variation or revocation of the order is made;
(d) the extent to which any compensation payable if any variation or revocation is made will not compensate all those who will suffer loss thereby;
(e) the loss of local employment that is likely to be caused by the making of the variation or revocation;
(f) the extent to which such a variation or revocation might have been made prior to the amendment to this Act made by the Marine and Coastal Access Act 2009
(g) the extent to which there was a public right of fishery in the area prior to the grant of the order such that the owners or reputed owners do not have any right to redevelop;
14. Through these amendments the Minister will be given clear guidance on the issues that are relevant to the making of the variation or revocation as these may be issues that have not been properly considered in connection with the making of the relevant consent such as planning permission, a licence issued under the Coastal Protection Act or the Food and Environment Protection Act, and which are fishery specific. It is similar in nature to the guidance that might be given to a court in considering the variation of a restrictive covenant under the Law of Property Act (see S. 84(1)).
15. The amendments ensure that the financial and economic security of the industry established under the order to be varied or revoked is properly considered on its own merits outside the process of other consenting procedures. It also ensures that the obligations of the Crown Estates under the 1961 Act are similarly considered. This amendment avoids a "policy black hole" and provides a degree of guidance and certainty for all concerned as to the criteria to be considered in the exercise of the Minister's discretion.
B. Broadening the class of people to whom compensation may be payable
16. Add to proposed subsection (11)(a), at the end of the subsection:
"or to any other persons lawfully exercising the right in that area or in other areas that will be affected by the order";
17. This amendment is important because it introduces certainty into an aspect of the legislation that proved to be confusing during the recent High Court and Appeal Court cases concerning the mussel fishery in the Menai Strait.
18. To be more specific:
19. In the recent
20. This proposal also makes it clear that compensation may be payable to those outside the "affected area" as defined but who may be within the original order or just outside it but who may be affected by such issues as for example; plumes of sediment, or changes in water quality which could make their business as inviable as the direct physical impact of a new development. We note that in this respect the proposal mirrors current thinking on the protection of wildlife sites from new development proposals, and we consider that the same principles should be applied to the future well-being of the shellfish farming industry.
C. Broadening the scope of consultation
21. We proposed that the following text should be added to proposed subsection (12) after paragraph (b)
(c) any other persons lawfully exercising the right of several or regulated fishery in that area or in other areas that will be affected by the order
22. This is important for the same reasons as 2 above so as to ensure the appropriately affected persons are consulted in connection with the making of any amendment or revocation.
23. Conclusion
24. These amendments represent, in our legal advisor's view, the bare minimum changes that will be needed to ensure that the Minister's proposed amendments do not rob the Sea Fisheries (Shellfish) Act of its original intent and purpose.
25. We hope that this submission is of value to the Committee and would be happy to offer any further assistance in connection with this matter.
July 2009
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