Fisheries Bill

Written Evidence submitted by Professor Richard Barnes, The School of Law and Politics, The University of Hull (FISH06)

Introduction

I am Professor of Law at the University of Hull. LLB (Hons) (Dundee), LLM (Cantab), PhD (Hull). I have over two decades of experience researching and publishing on law of the sea, with particular focus on fisheries regulation. The submission is presented in a personal capacity only.

The main observations in this submission concern the need to strengthen the basic principles contained in the Bill to ensure that decision-making is more accountable, and to ensure the Bill better reflects wider political commitments presented in the Fisheries White Paper to more sustainable, fairer fisheries management.

Fisheries Objectives

1. A series of general principles are stated in Clause 1 as ‘fisheries objectives’. The range of objectives should be expanded to accommodate generally accepted principles of good fisheries management. These can be derived from the FAO Code of Conduct for Responsible Fisheries. These principles include:

a. fair allocation of fishing opportunities , reflecting the wider economic, social and cultural factors, and the importance of maintaining diversity in the fishing sector ;

b. an integrated approach to fisheries and other marine/coastal activities;

c. the compatibility of measures for shared stocks;

d. clear and strong stakeholder engagement in decision-making processes;

e. transparent and open decision-making; and

f. the use of impact assessments in resource management.

By expanding the range of objectives, decision-makers will be provided with a stronger frame of reference for managing fisheries in UK waters. It would also strengthen the policy commitment to world leading, sustainable fisheries management , linked to the specific needs of coastal communities.

2. These objectives underpin all aspects of fisheries management. They would be strengthened if they were restated as duties. This could be done by expressly stating in Clause 6(1) that any public body with responsibility for fisheries management shall exercise its functions with regard to the objectives/duties in Clause 1. An example of a similar approach is found in s. 3 of the Well-being of Future Generations (Wales) Act 2015). This could be done by amending Clause 6(1) to include a direct reference to the objectives: A relevant national authority must exercise its functions relating to fisheries, fishing or aquaculture in accordance with the fisheries objectives and the policies contained in a JFS that are applicable to the authority, unless relevant considerations indicate otherwise’. Establishing a duty would aid decision-makers by providing a clear set of reference points that must be considered in the exercise of discretionary powers. The duties as framed remain flexible enough to allow a range of adaptive and context specific decisions to be made. Strengthening the objectives would strengthen the environmental credentials of the Bill. It would provide a potential mechanism for ensuring that decision-makers are held to account for the mismanagement of fisheries. By linking the performance of duties to the exercise of power by public bodies with responsibility for fisheries management, the provision would then encompass bodies not specifically listed in the present Bill (eg inshore fisheries conservation authorities, and, potentially, producer organisations) if and to the extent they perform public fisheries management functions.

3. The fisheries objectives are quite complex concepts. The operation of the objectives could be enhanced by a provision requiring the provision of periodic guidance as to how such objectives should be given effect to in the discharge of any public bodies functions, and requiring any such body to have regard to such guidance. (eg Environment Act 2015, section 4: eg ‘The Secretary of State shall from time to time issue guidance to relevant national authorities fisheries with respect to objectives /duties which they consider it appropriate for the such authorities (and any other body exercising a fisheries management function) to pursue in the discharge of its function)’. This could be added as a final sub-clause in Clause 1.

4. In operational terms, the objectives should be enhanced by making explicitly linking the provisions on financial assistance under Clause 28 to the objectives in Clause 1. Thus decisions on financial assistance should have regard to the fisheries objectives. This would facilitate an alignment between developmental activities and the operational delivery of sustainable fisheries.

5. Clause 1(9) revokes Article 2 of the Common Fisheries Policy Regulation. To some extend the removal of governing objectives is mitigated through the creation of UK specific objectives. However, some of these objectives are less rigorous than the objectives of the CFP. These include

· ‘Environmentally sustainable’ (Clause 1(2)) is defined in conjunction with the term ‘long term’. This might imply short-term unsustainable practices are permitted. This should be rephrased to make it clear that sustainability is both a present and future condition ie ‘in the short term and long term’.

· The scientific evidence objective is framed in facilitative terms (Clause 1(5)). There is no requirement to adhere to scientific advice. This has been the object of significant criticisms of the CFP, where total allowable catch (TAC) levels have often been set higher than the levels recommended by scientific advice. There is an opportunity here to enhance the role of science. This could be done by requiring that ‘scientific advice shall be respected in the exercise of any powers under the Act’. If flexibility is required, then an exception to this can be made with a requirement for reasons for this to be provided, and listing the situations where scientific advice can be rejected or modified in its application to catch levels. For example, to ensure critical food supplies, or for overriding reasons of public interest. Any derogation from scientific advice must be exceptional and time limited.

· The discards objective described in the Bill requires a gradual avoidance or reduction of discards. It further requires a gradual move to the landing of all catch. The landing obligation under the CFP (which would potential remain applicable, either in transition or through the reception of EU fisheries law into domestic law under the EU (Withdrawal) Act, requires that all catch be landed from 1 January 2019. The relationship between the discard objective and this existing commitment is unclear and suggests a step backwards in terms of landing requirements. This point needs scrutiny and clarification.

· Article 2(2) of the CFP sets the goal of restoring or maintaining fish stocks at levels capable of producing the maximum sustainable yield (MSY) by 2020. The Fisheries Bill sets no timeframe for the goal of reaching the MSY. At best this could be stated in a joint fisheries statement (JFS). However, there is no requirement to set target dates. The rigor of the commitment to achieving MSY in the Bill could be enhanced by setting timeframes. This exists elsewhere in the Bill with reference to the achievement of good environmental status by 2020 (Clause 2(2)(i)).

· Article 2(5)(f) of the CFP requires fisheries policy to contribute to a fair standard of living. The only comparable reference in the Fisheries Bill is Clause 1(2)(b) which refers more generally to social and employment benefits. This is a weaker reference point. The Bill should include a clear commitment to developing fair standards of living for those in the fishing industry and the wider coastal communities that support them. This would better reflect policy commitments to improving the economic position of coastal communities.

6. Maximum sustainable yield is mentioned only in the context of the precautionary objective. Since precaution is only a policy objective, applied through the JFS, its role is limited. The operational role of the MSY should be strengthened through its inclusion as a duty and reference point for fishing opportunities (eg under Clause 18). MSY differs from precaution, ecosystem and science objectives in that MSY is a specific legal duty under international law (UNCLOS Article (61(3)), whereas the other objectives are broader principles shaping how more specific duties are implemented.

Fisheries Statements

7. Fisheries statements provide a link between the general fisheries objectives and specific policy commitments. The Bill should include a provision requiring the Secretary of State or fisheries policy authorities to ensure that the fisheries objectives will be implemented. As noted above this would be best achieved by framing the objectives as duties. This would replace the somewhat weaker indirect reference to ‘policies (however expressed) for achieving, or contributing to the achievement of, the fisheries objectives’ in Clause 2(1). The term ‘however’ expressed’ allows too much latitude and could generate uncertainty as to whether specific measures relate to the fisheries objectives. This should be removed or framed in terms that express a stronger commitment to advancing the fisheries objectives.

8. JFS and Secretary of State fisheries statements (SSFSs) play a critical role in establishing the framework for more specific legal measures to manage fisheries. As such they must be subject to full and transparent scrutiny. There is initial scrutiny of this through the Schedule 1 process. The scope of consultation is generally framed and linked to ‘interested persons’. Consideration should be given to be enhancing the rigour of this part of the process to recourse to statutory consultees including local authorities, the Environment Agency or other named stakeholders. And including a minimum period for public consultation.

9. There is a review process in respect of the fisheries statements in Clause 5. However, the review process appears to lack independence and formal structure. Objectivity is lacking since it is the fisheries policy authorities preparing the JFS, and the Secretary of State preparing the JFS, that must review the policies. Some indication of the purpose and content of the review is desirable, as well as scope for external input into the review. If such requirements are not included in the primary legislation, then it would be appropriate for this to be contained in secondary legislation or policy guidance.

10. The SSFSs include reference to ‘promoting coastal fishing activities, taking into account socio-economic factors’ (Clause 2(2)(h)). This is important, but it should include specific reference to the interests of coastal communities since the interested concerns are not simply related to actual fishing activities. It is suggested the term be amended as follows: ‘promoting coastal fishing activities and the needs for dependent coastal communities, taking into account socio-economic factors.’

11. Clause 6 provides that fisheries statements must be adhered to by national authorities unless ’other relevant considerations indicate otherwise’. This provides a potentially wide exception to the requirements to adhere to statement (and fisheries objectives). The threshold for exceptions should be higher: eg the public body shall exercise its functions with due regard to the (objectives/duties) and policies contained in a JFS unless there are overriding reasons in the public interest for doing otherwise.

Setting Catch Levels

12. The principal mechanism for this is Clause 18, which allows the Secretary of State to determine the maximum quantity of sea fish that may be caught (or effort expended). This refers only to British fishing vessels. However, if access is provide to foreign vessels, then this needs to be included reflected in the language used to state the total cap on fishing opportunities.

13. It would help clarify the scope of duties under Clause 19 to state that ‘replacement determinations’ (in effect these appear to be variations of existing determinations) should also be notified in accordance with Clause 19 procedures. At the very least there should be some public notification process. This would enhance the transparency of the process.

Allocation and Distribution of Fishing Opportunities

14. The Bill retains, subject to minor amendments, the role of Article 17 of the CFP concerning the criteria to be considered when distributing fishing opportunities. The provision does not appear to apply to devolved administrations. For shared stocks within UK waters, some degree of compatibility is be desirable for the allocation of fishing opportunities in respect of such stocks. This would be inline with the similarly designed compatibility requirements of the UN Fish Stocks Agreement (Article 7). There is no scope for this in the Bill, unless it is factored into the JFS. It may be desirable to specifically refer to this factor in Clause 2. Eg Clause 2(2)(j): ‘promote the compatibility of management measures across different fisheries jurisdictions’.

15. It would be better for the the Bill to restate the revised terms of Article 17 distribution criteria in full as an autonomous provision (ie within Clause 20). This would further detach such a critical issue from the CFP and send a clear signal that decisions on allocation are a matter of UK authorities. The proposed provision in the Bill reads:

"When distributing fishing opportunities for use by fishing boats, the relevant national authorities shall use transparent and objective criteria including those of an environmental, social and economic nature. The criteria to be used may include, inter alia, the impact of fishing on the environment, the history of compliance, the contribution to the local economy and historic catch levels. Within the fishing opportunities available for distribution by them, the relevant national authorities shall endeavour to provide incentives to fishing vessels deploying selective fishing gear or using fishing techniques with reduced environmental impact, such as reduced energy consumption or habitat damage.

In this Article, "the relevant national authorities" means- (a) the Secretary of State, and (b) the Marine Management Organisation"

16. This provision could be further revised to enhance the rigour of allocation decisions and environmental objectives. This would be in line with wider policy commitments to a fairer and clear system of allocations of fishing opportunities. By establishing clear criteria in law, decision-makers would have clear points of reference for potentially difficult allocation decisions. The existence of such criteria may help public bodies defend their decision from legal challenge. The following changes are suggested:

· In sentence two, replace ‘may’ with shall’.

· In sentence three, ‘endeavour to provide’ could be replaced by ‘introduce’. Or replace ‘shall endeavour to provide incentives to fishing vessels deploying selective fishing gear’ could be replaced with ‘ensure there are adequate incentives to fishing vessels to deploy selective fishing gear or use fishing gear…’.

· Other factors that should be included in the list of allocation criteria include:

o the state of the target and dependent fish stocks (this is a critical baseline consideration and would justify variations in accordance with actual or threatened changes in stocks/ecosystem conditions);

o the structure and diversity of the fishing fleet (this is particularly important if the policy commitments to support the small/inshore sector are to be met);

o the needs of needs of coastal fishing communities which are dependent mainly on fishing (this is more targeted to coastal communities than contributions to local economies); and

o owner/operator/agency contributions to data collection, scientific research and management of fish stocks (thereby strengthening engagement in scientific/research activities).

· The matter of distribution should be linked to the list of indicative content of fisheries statements in Clause 2(2). This could be done by using a terms like ‘shall have appropriate reference to allocation distribution of fishing opportunities according transparent, fair and environmentally sensitive criteria’.

Sale of Fishing Opportunities

17. Although the Bill is intended to enable a range of powers, and so is framed in quite general terms, the provisions on the sale of opportunities could be strengthened by ensuring the same or equivalent provisions on allocation (under Clause 20) are also applied to the sale of fishing opportunities.

Miscellaneous Matters

18. The Fisheries Bill makes reference to international ‘arrangements’ (Clause 8 on access to British fisheries & Clause 40 defining the international obligations of the UK). In these provisions there is a later reference to ‘which the UK is party’, indicating that the term refers to binding legal commitments of a bilateral or multilateral nature. However, the term arrangements potentially include unilateral undertakings, informal arrangements, and a range of non-binding instruments sometimes classed as soft law (eg FAO Code of Conduct for Responsible Fisheries). The precise object of this term (arrangement) is not clear and should be clarified.

19. The White paper commits to the publication of an annual statement on the state of stocks of interest UK and an approach to setting fishing rates and other management measures (Section 2.1). The Bill lacks a provision on this. This matter should be addressed in the Bill.

December 2018

 

Prepared 6th December 2018