3Governance
Reporting and assessment
19.The Common Fisheries Policy (CFP) involves a series of reporting processes whereby Member States gather data and report to the European Commission. The Commission reports annually to the European Parliament and the Council. The Commission is due to conduct a review and report to the European Parliament and the Council by 31 December 2022, on the functioning of the CFP.23
20.Clauses 1 to 6 of the Fisheries Bill set out a number of fisheries objectives that the UK Government and the Devolved Administrations must aim to achieve when setting out their policies in two new policy documents: a Joint Fisheries Statement (JFS) and the Secretary of State’s Fisheries Statement (SSFS).24
21.The objectives in Clause 1 of the Bill reflect the CFP’s objectives, and will become the objectives for the UK Fisheries Administrations and the Secretary of State. They are the sustainability objective, the precautionary objective, the ecosystem objective and the discards objective. The House of Commons Library noted that although the majority of the wording of the CFP’s objectives has been replicated in Clause 1 and 2, “the CFPs commitment to achieve a maximum sustainable yield exploitation of fish stocks by 2020 is not included” (see Chapter 5).25 Clause 1 adds two new objectives to those in the CFP:
i)a ‘scientific evidence objective’, to “(a) to contribute to the collection of scientific data, and (b) to base fisheries management policy on the best available scientific advice” - a commitment in Defra’s 25 Year Environment Plan to base fisheries policy on scientific evidence and which was supported by the majority of respondents to the White Paper consultation;26 and
ii)an ‘equal access objective’, guaranteeing equal access for UK fishing boats to all UK waters, which the Government included as a commitment in its Fisheries White Paper and which its Summary of responses said received strong support.27
22.Clauses 2 to 6 cover the JFS and the SSFS. The Secretary of State and the Devolved Administrations will be required to publish a JFS setting out the policies which would contribute to the common achievement of those objectives; and the Secretary of State will publish a SSFS to address a set of more detailed objectives not covered by the JFS.28
23.The Bill does not include a duty to meet the fisheries objectives but does impose a duty to produce the first JFS and SSFS by January 2021 (the end of the intended implementation period). The Secretary of State and the Devolved Administrations will be required to pursue the policies outlined in the statements and review them at least every six years.29 The Explanatory Notes explain that the purpose of the JFS “is to recognise that, although fisheries is devolved, none of the Fisheries Administrations acting alone could achieve the fisheries objectives. The intended effect of the statement would be to set out and coordinate fisheries policies after the UK has left the EU”.30
24.Clause 6 of the Bill requires the relevant national authorities to pursue the policies outlined in the relevant fisheries statements which apply to them “unless relevant considerations indicate otherwise”.31 This condition is required to enable flexible decision-making. This allows divergence from JFS-policies, where occasionally required.32
25.Inquiry respondents generally supported the fisheries objectives, although there was some difference of opinion, with many suggesting particular amendments. On the sustainability objective, fishing industry respondents favoured a less stringent approach; whilst environmental NGOs wanted stronger requirements (see Chapter 5). Most respondents supported using fisheries statements but had reservations. For example, the National Federation of Fishermen’s Organisations (NFFO) said although policies in the statements will be legally binding, it appeared that a fisheries administration “can escape the provisions of the joint statement merely by providing a valid reason for departing from the agreed policy. There is therefore an inherent ambiguity over how [the Fisheries Objectives] would work in practice, especially in areas where frictions arise”.33 The NFFO called for the establishment of a dispute resolution mechanism.34
26.Most NGOs said they wanted there to be a duty on all relevant public authorities (not just national authorities as the Bill proposes) to achieve the fisheries objectives and a requirement for annual updates on progress against objectives.35
27.Professor Richard Barnes, a Law Professor at the University of Hull (Law of the Sea), said “the Bill should include [a] provision requiring the Secretary of State or fisheries policy authorities to ensure that the fisheries objectives will be implemented […] this would be best achieved by framing the objectives as duties”, replacing the weaker terms currently in the Bill.36 He also said fisheries statements must be subject to full and transparent scrutiny and may need to be more rigorous and explicitly include statutory consultees and a minimum period for public consultation.37
28.The Law Society of Scotland said it “welcome the requirements for review of the statements under Clause 5, however, suggest that this could be strengthened by a requirement to publish the conclusions of such a review”.38 It said the wording in Clause 6 “unless relevant considerations indicate otherwise”, whereby fisheries administrations can diverge from JFS-policies depending on the circumstances, is unclear and requires clarification.39
29.We asked the Minister of State for Agriculture, Fisheries and Food to explain the basis for setting the review for Fisheries Statements “at least every 6 years”, under what circumstances the Government would expect to review the statements sooner and if they would be subject to expert assessment. He responded:
when you draft pieces of legislation […] you try, as far as possible, to be consistent with what has been said in previous legislation and to have some consistency. If you needed to look for a review period, we looked at the Marine and Coastal Access Act, which had provisions for marine spatial planning. In that Act, they set six years as being the period over which you should review. We then took the view that, if things changed more quickly or there was a dynamic change in the scientific advice, you might want to review those plans sooner.40
30.The Minister said the two circumstances where statements may be reviewed are “if there was a genuine fundamental change in the science of some particular element that you needed to reflect, and […] [if] a new Government took over and had different priorities and manifesto commitments and therefore wanted to review and amend the joint fisheries statement”.41 The Minister said any expert assessment may be undertaken by the Centre for Environment Fisheries and Aquaculture Science (Cefas).42
31.The process of developing and reviewing the Joint Fisheries Statement (JFS) and the Secretary of State’s Fisheries Statement (SSFS) is an opportunity to provide clear direction and effective coordination for the UK’s fisheries policy as an independent coastal state. However, it is essential that the JFS and SSFS are subject to a shortened review period and independent expert assessment to help facilitate more rigorous scrutiny.
32.The Government should amend the Bill so that the Joint Fisheries Statements (for the UK Government and the Devolved Administrations) and the Secretary of State’s Fisheries Statement will: (a) be subject to an interim review every three years and full review every six years; and (b) comprise an expert and independent published assessment that can be subject to public and parliamentary scrutiny.
Delegated powers
33.The Common Fisheries Policy is set out in Regulation (EU) No 1380/2013,43 and comprises approximately 100 technical regulations which provide for a common approach to the sustainable management of fisheries across the EU and its waters. They are amended and superseded on a regular basis, in response to new developments such as changes in scientific advice.44
34.The Bill’s Delegated Powers Memorandum stated that the UK Fisheries Administrations, the fishing industry and environmental NGOs, share a consensus that the UK needs a dynamic system of fisheries management that can respond swiftly.45 It explains that the Bill will create a “dynamic fisheries regime” which requires it to contain a number of broad delegated powers.46 The purpose of the Bill’s delegated powers will be to enable UK Ministers and the Devolved Administrations to:
- Implement new fisheries agreements and arrangements the UK will enter into with other countries as an independent coastal state;47
- Allow Government policy to adapt to changing environmental priorities and social and economic circumstances;
- Respond to scientific and other expert advice; and
- Move away from the constraints of the CFP.48
35.The Bill includes a number of Henry VIII powers, which are clauses that would enable Ministers to amend or repeal provisions in an Act of Parliament using secondary legislation. They include:
- Clause 9 (3), which allows the Secretary of State to add or remove exceptions to the types of British fishing vessels that do not need a licence;
- Clause 11(2), which allows the Secretary of State to amend the prohibition on foreign vessels fishing in UK waters without a licence;
- Clauses 31 (powers to make provisions about fisheries, aquaculture, etc) and Clause 33 (powers to make provisions about aquatic animal diseases) and Schedule 6 (which provides powers for devolved administrations) are not amendable. However, Clause 34 (7) and (8) provides that powers under Clauses 31, 33 and Schedule 6 to make regulations extend to amending, repealing or revoking “any enactment” as it relates to these clauses.49
36.Jeremy Percy of the New Under Ten Fishermen’s Association (NUTFA) said he did not see delegated powers as a problem, as fishing is “a very dynamic industry [and we] are used to responding quite quickly” to the types of challenges this may raise.50 Mike Park, of the Scottish White Fish Producers Association (SWFPA), considered that the Bill’s delegated powers would enable things to be changed and implemented quickly, and would give the devolved administrations “a degree of freedom to make adjustments”, and would provide a “less rigid” framework than what currently exists under the CFP.51 However, NUTFA stated that the operation of delegated powers by Ministers required clarity and coherence at a UK-wide level, in order to prevent “different rules in different areas for different boats”.52
37.The National Federation of Fishermen’s Organisations (NFFO) called for a statutory advisory body to act as a filter on proposals and also to make recommendations to ministers because “this has not found its way into the primary legislation and we think that is a fundamental mistake. It is certainly at odds with the collaborative tone of the Fisheries White Paper and rhetoric regarding a collaborative approach”.53 The NFFO cited Norway and Australia as both having formal advisory processes and structures and called for “the inclusion of an advisory council on a statutory basis in the Bill”.54 Greener UK, the RSPB, Nature Matters NI & Northern Ireland Marine Task Force and The Wildlife Trusts, all called for a formal consultation process to ensure effective scrutiny of secondary legislation.55
38.We asked the Minister whether the Government would consider either amending the Bill to include a statutory advisory council or to establish a non-statutory advisory body. He responded that stakeholders are already consulted for annual fisheries negotiations, through a number of advisory groups. The Minister doubted that a “one size fits all” statutory advisory council was likely to work. However, the Minister said he was “planning to work with industry over coming months to develop a joined-up model of consultation, advice, and shared management which meets future needs”.56
39.The Fisheries Bill is an opportunity to ensure the UK fisheries administrations can operate a dynamic fisheries management system, which can rapidly respond to changing circumstances. However, it is important that the use of delegated powers by the Secretary of State is informed by stakeholders in order to ensure that issues relating to their practical implementation are fully considered.
40.The Government should establish a non-statutory advisory body, which can provide a forum for consultation and communication with stakeholders, for the new fisheries management system that will be established when the UK becomes an independent coastal state. This will help to provide transparency and confidence in the decision-making process, including in the application of the Fisheries Bill’s delegated powers. This body needs to have the credibility to make a real and sustained impact, encouraging support and buy-in for the new system among all stakeholders, including the fishing industry, the scientific community and environmental groups.
Fisheries management in England
41.The enforcement and management of fisheries in England is mainly carried out by the Marine Management Organisation (MMO) and the Inshore Fisheries and Conservation Authorities (IFCAs), which were established under The Marine and Coastal Access Act 2009.57 The MMO is responsible for licensing, regulating and planning marine activities in the seas around England so that they are carried out in a sustainable way.58 IFCAs are committees or joint committees formed from relevant local authorities within 10 areas across England. They comprise representatives from their local authorities and different sectors, such as commercial and recreational fishermen, environmental groups and marine researchers. The IFCAs have byelaw making powers and their duties include the management of fisheries resources and the conservation of the marine environment within the inshore sea (0–6 nautical miles).59
42.The Fisheries Bill proposes new powers and provisions with regard to the MMO but not IFCAs:
- Clause 38 and Schedule 7 extend the powers of the MMO and Scottish and Welsh Ministers (under the Marine and Coastal Access Act 2009) to make byelaws relating to marine conservation, to cover the whole of the UK Exclusive Economic Zone, which extends up to 200nm from the UK coast; and
- Clause 29 provides the Secretary of State with powers to put in place regulations to allow the MMO to charge for various functions relating to fisheries.60
43.There was some doubt over whether the MMO had enough enforcement vessels to control access to UK waters in the future. Councillor John Lamb of the Kent and Essex IFCA told us: “ I do have a concern that in fact does the MMO have the actual resource to fully control? It might be saying that we license them but, if they are coming into our waters, how do we ensure that we control them?”61 Phil Haslam of the MMO described in the Public Bill Committee how his organisation was planning to ensure that it had enough vessels to enforce the new system and prevent illegal fishing in UK waters by foreign boats.62
44.The NFFO considered that the fishing industry would see MMO-charges as legitimate as long as there was an “even playing field” within the UK single market.63 The Wildlife Trusts supported the proposed additional powers for the MMO to manage fisheries.64 The Cornwall and Isles of Scilly Local Enterprise Partnership said the Bill should include a commitment for “adequate resources” for both the MMO and IFCAs to monitor and enforce the Bill’s policies. They also wanted to ensure that Clause 29 “does not mean that [the] MMOs only means of funding enforcement is from its charging policy”.65
45.The Cornwall and Isles of Scilly Local Enterprise Partnership stated that IFCAs’ role in the future management of inshore waters needed to be recognised, and it wanted clarification on the role of IFCAs “in any future fisheries management governance framework and its subsequent delivery”.66 The New Economics Foundation (NEF) stated that IFCAs were absent from the Bill, but their remit and competencies in England have been increased beyond those of their Scottish and Welsh counterparts. NEF said future cost recovery “should bear in mind that these inshore bodies will continue to grow as a primary point of management”.67 However, the North Eastern IFCA stated that:
Whilst the devolved administrations have a clear framework through their parliaments and ministers to influence decision making such a framework is less obvious in England. Currently the Bill provides that the [MMO] will undertake such a role in England. England does however have an established regional management framework which is underpinned by national legislation in the form of the IFCAs. The potential use of that IFCA framework could be more formally enshrined in the Bill to support the MMO in the development of the ‘Fisheries Statements’ and provide for much stronger links to the coastal communities that will be subject to the decision-making process.68
46.The Minister’s view on whether IFCAs would have adequate enforcement powers was that:
IFCAs have the enforcement powers they need for their current responsibilities, which do not change as a result of [EU] Exit. If their responsibilities were to change in the future, the Order making power in the Marine and Coastal Access Act would be the vehicle to do that, and that same power would be used to give them any additional enforcement powers.69
47.The Fisheries Bill extends new powers and provisions to the Marine Management Organisation (MMO) but not to Inshore Fisheries and Conservation Authorities (IFCAs). The Government needs to ensure that new policy can be enforced in all English waters. IFCAs should be provided with the provisions and powers that a post-CFP regime will require. It is also important to ensure that both the MMO and IFCAs are adequately resourced to deliver their respective responsibilities and that unnecessary duplication is avoided. This means, amongst other things, that there must be an adequate number of fisheries protection vessels available to authorities.
48.The Government should amend the Bill to more clearly designate the respective roles and powers of the MMO and IFCAs in relation to their duties for fisheries and marine protection, and to ensure they both have the necessary enforcement powers and resources of personnel and protection vessels to fully deliver the requirements of the UK as an independent coastal state.
23 Regulation of the European Parliament and of the Council on the Common Fisheries Policy, (EU) No 1380/2013
24 Briefing Paper Number 8442, House of Commons Library, 3 December 2018, page 28
25 Briefing Paper Number 8442, House of Commons Library, 3 December 2018, page 25
26 The Fisheries Bill 2017–19, Briefing Paper Number 8442, House of Commons Library, 3 December 2018, page 28
27 The Fisheries Bill 2017–19, Briefing Paper Number 8442, House of Commons Library, 3 December 2018, page 28–29; Defra, Sustainable fisheries for future generations, CM 9660, July 2018; Defra, Sustainable fisheries for future generations: Summary of consultation responses and government response (October 2018), page 4
28 The Fisheries Bill 2017–19, Briefing Paper Number 8442, House of Commons Library, 3 December 2018, page 28–29
29 The Fisheries Bill 2017–19, Briefing Paper Number 8442, House of Commons Library, 3 December 2018, page 28
30 Explanatory Notes to the Fisheries Bill [Bill 278 (2017–19), page 17
31 Fisheries Bill 2017–19, Clause 6(1) [Bill 278 (2017–19)]
32 Explanatory Notes to the Fisheries Bill [Bill 278 (2017–19), page 17
35 For example, Greener UK (SFB0030); Royal Society for the Protection of Birds (RSPB) (SFB0017); and Nature Matters NI & Northern Ireland Marine Task Force (SFB0019)
42 Qq286–287. Cefas is an executive agency, sponsored by Defra which collects, manages and interprets data on the aquatic environment, biodiversity and fisheries.
43 Common Fisheries Policy, Regulation (EU) No. 1380/2013
44 The Fisheries Bill 2017–19, Briefing Paper Number 8442, House of Commons Library, 3 December 2018, page 39
45 Delegated Powers Memorandum to the Fisheries Bill [Bill 278 (2017–19)], page 3
46 Delegated Powers Memorandum to the Fisheries Bill [Bill 278 (2017–19], page 4
47 Under the UNCLOS, the UK is obliged to cooperate with other coastal states to preserve fish stocks.
48 Delegated Powers Memorandum to the Fisheries Bill [Bill 278 (2017–19)], page 5
49 The Fisheries Bill 2017–19, Briefing Paper Number 8442, House of Commons Library, 3 December 2018, page 27
55 Greener UK (SFB0030); Royal Society for the Protection of Birds (RSPB) (SFB0017); Nature Matters NI & Northern Ireland Marine Task Force (SFB0019); and The Wildlife Trusts (SFB0006)
57 Explanatory Notes to the Fisheries Bill [Bill 278 (2017–19); The Marine and Coastal Access Act 2009
58 Explanatory Notes to the Fisheries Bill [Bill 278 (2017–19)]
59 Association of Inshore Fisheries and Conservation Authorities; Explanatory Notes to the Fisheries Bill [Bill 278 (2017–19)]
60 Delegated Powers Memorandum to the Fisheries Bill [Bill 278 (2017–19)]
62 Fisheries Bill, Public Bill Committee, cols 43–44
Published: 20 January 2019