Brexit and Northern Ireland: fisheries Contents

Chapter 2: Territorial waters

76.In this chapter, we examine how two maritime border disputes between the governments of Ireland and the UK have had an impact on the fishing community in Northern Ireland. Firstly, how suspension of the Voisinage Arrangement has affected Northern Ireland vessels’ access to historic fishing grounds in Irish waters. Then, the obstacles to achieving sustainable oyster farming in cross-border Lough Foyle and coherent environmental protection across both Lough Foyle and Carlingford Lough.

The Voisinage Arrangement

77.The Voisinage Arrangement is an informal agreement which allows Ireland and Northern Ireland vessels reciprocal access to fish in the 0–6 nautical mile zone of each other’s territorial waters.202 The Arrangement predates Ireland and the UK joining the EU and was evidenced by an exchange of letters in 1964–65 between senior civil servants; Mr O’Sullivan in Dublin and Mr Bateman in Belfast.203 The letters are informal but indicate agreement on reciprocal access for vessels under 75ft (23 metres) and suggest that access should be limited to those vessels owned and operated by persons who reside permanently in Northern Ireland and Ireland.204 No legislative provisions were specifically adopted for the Voisinage Arrangement by either government.

78.On the 27 October 2016, four Irish fishermen brought a case before the Irish Supreme Court which challenged the legality of Northern Ireland vessels fishing for seed mussel in Irish territorial waters under Voisinage. The Supreme Court concluded that the Voisinage Arrangement was an informal gentlemen’s agreement which is insufficient to legally grant access to fish by foreign vessels in Irish waters. Mr Justice O’Donnell found that fishing constitutes exploitation of a natural resource under Article 10 of the Irish Constitution and therefore it must be provided for “by law, which must mean public legislation”. However, he also made clear that “there is no insuperable constitutional objection to making provision by law for such fishing”.205 As a result of the Supreme Court’s decision, Northern Ireland vessels are no longer allowed to fish in the 0–6 nautical mile zone in Irish waters.206 Irish fishing vessels continue to benefit from access to fish in British waters under the terms of Voisinage.

79.Following the judgement, the Irish Government gave assurances that it would bring forward primary legislation to reinstate the Voisinage Arrangement. On 9 February 2017, the Irish Minister for the Environment, Food and the Marine, Michael Creed TD, introduced the Sea-Fisheries (Amendment) Bill 2017 to provide a legislative basis for the Voisinage Arrangement.207 The Explanatory Memorandum for the Bill states that the legislation “explicitly provides for access to fish by sea-fishing boats owned and operated in Northern Ireland within 0 - 6 nautical miles”.208 During both second reading and committee stage, the Bill received heavy criticism over the absence of pre-legislative scrutiny or consultation with the Irish fishing industry.209 It was also criticised for the absence of conditions about vessel size and Northern Ireland vessel designation.210 Consequently, the Bill was submitted for further scrutiny by the Joint Oireachtas Committee on Agriculture, Food and the Marine on the 20 June 2017. Oral evidence to that Committee from Francis O’Donnell, CEO of the Irish Fish Producers Organisation, encapsulates opposition to the Bill:

If this Bill is passed, any vessel registered in the UK, whether owned by an individual or conglomerate from any EU member state, can avail of access inside our exclusive six-mile limit. The Bill, as presented, is devoid of any safeguards. There are no length or engine power restrictions. [ … ] The Seanad was correct to reject the Bill as it is fraught with uncertainties and lacks the preciseness required to avoid future legal challenges or abuses by those availing of it. [ … ] National self-interest is an important concept. The UK is promoting its own agenda to put Britain first. As a state, it is more than entitled to do so. It is equally the case for Ireland.211

The Bill has remained at committee stage since 22 March 2017. Minister Creed has since acknowledged that “there is considerable political opposition” to the Bill which, in the context of a minority government, “raises the question of whether the Bill can pass.”212

80.Vessels in Northern Ireland have been unable to access habitual fishing grounds in Irish waters under the Voisinage Arrangement since 27 October 2016. The Committee heard that this has led to “economic hardship” for between a dozen and twenty smaller vessels in Northern Ireland, which have been unable to replace these fishing opportunities.213 Andrew Orr, a Northern Ireland fisherman, told us:

I had a small boat and I had to sell it because we could not fish down there. A lot of young, smaller boats are under pressure because of the Voisinage.214

Northern Ireland fisherman Jimmy Kelly said:

If it was not for the whelk fishery, the small boats this year would have had a very poor year. Some are finding it extremely tough especially, as Andrew has been saying, in Kilkeel where basically half their traditional fishing area has been taken from them. Basically, that means that the (lobster) pots that they would have been putting up along the coast is now on the County Down shore, which is creating possibly a bit of a tight squeeze in places.215

We asked Northern Ireland’s fish Producer Organisations what action the UK Government should take, for example suspending Voisinage arrangements for Irish fishermen. Alan McCulla, CEO of ANIFPO, told us:

In many ways, I am with the UK Government in maintaining the moral high ground on these issues, but the question arises: how long does the UK keep the moral high ground before it has to review the situation? [ … ] I get regular visits and regular phone calls from my members who have been expelled from the inshore waters of the Irish Republic. Their first question is: is this issue going to be resolved?216

81.When questioned on when the problem would be resolved, Minister Eustice told us it was “raised regularly” with the Irish Government and cited meetings in July 2017, November 2017 and June 2018.217 We subsequently wrote to the Secretary of State for Environment Food and Rural Affairs, Michael Gove MP, to establish what actions have been taken by the Government to restore access for Northern Ireland vessels. Minister Eustice, replying on the Secretary of State’s behalf, informed the Committee that he had recently written to Minister Creed to voice his concern, and emphasised that the UK “will not accept unequal application of the agreement indefinitely”.218 The UK Government has defended its decision to continue with asymmetric application of the Voisinage Arrangement because of assurances from the Irish Government that it would bring forward primary legislation to restore reciprocity.219

82.We are disappointed that the Voisinage Arrangement has been unilaterally suspended in Ireland. While Irish fishermen have access to waters in Northern Ireland, fishermen in Northern Ireland have suffered hardship through exclusion from their habitual fishing grounds. This needs to be resolved as a matter of urgency. We recommend the Government structures talks with the Irish Government to establish the future of reciprocal access for Northern Irish vessels under the Voisinage Arrangement. If the Irish Government does not give a clear commitment to pass, within 6 months of publication of this report, legislation which restores reciprocal access, the Government must discontinue access to UK waters for Irish vessels from 30 March 2019. If the Irish Government does pass legislation to reinstate the Voisinage Arrangement, then the UK Government should consider whether the arrangement should also be put on statutory footing in UK law.

Marine boundaries in Lough Foyle

83.There is a long running dispute between the UK and Irish Governments over the delimitation of maritime borders in cross-border Loughs Foyle and Carlingford.220 Loughs are lakes connected to the wider river system that supports native fish species such as salmon, trout, eel and mussels.221 The two governments disagree over ownership of Lough Foyle and, to a lesser extent, Carlingford Lough. The UK Government considers that “the whole of Lough Foyle is within the UK”.222 However, the Irish Government has never accepted the UK’s claim to the whole of Lough Foyle.223 Regulation of activities in the Loughs is the responsibility of the Loughs Agency, a North-South Implementation Body constituted under the Belfast/Good Friday Agreement.224 The Agency is a unique institution that has been engaged in cross-border fisheries management since the Foyle Fisheries Act was passed in 1952, long before the creation of the European Union.225 The Agency aims to provide sustainable, economic and environmental benefits through the effective management of marine resources within its jurisdiction.

84.In Lough Foyle, the Agency has been prevented from exercising statutory powers over marine aquaculture licensing because of the boundary dispute between the two governments.226 The number of unlicensed oyster trestles in Lough Foyle has grown from around 2,500 in 2010–11 to around 50,000 today.227 The Agency described the proliferation of oyster trestles as a “free-for-all” which is creating navigational hazards for boats and sustainability concerns for the native oyster population.228 It is also introducing the risk of disease into the food chain and damaging the market reputation of Irish oysters.229 The Agency estimates that if oyster farming was properly licensed it would be a “huge economic driver” for the Lough Foyle area with a potential worth of £20 million.230 We heard that Lough Foyle has “untapped potential” for aquaculture production and that the absence of regulation is impeding economic development of the sector. In particular, a lack of legal protection for fish stocks and the failure of businesses to diversify sustainably by landing other species and using new management techniques.231 Sharon McMahon, Designated Officer at the Lough’s Agency, told us:

The economic value is unregulated. There are no licence fees paid, and there is no encouragement to allow people to come into the industry to set up a farm of their own and run it sustainably, but we would be there to help with that. We are even looking at putting in a brood stock project of our own in the Foyle that will help the commercial fishermen on the Foyle with the native oyster.232

85.The Agency was granted the powers to regulate and license aquaculture in the Foyle and Carlingford Fisheries Order 2007 but the dispute between the Irish and UK Governments over ownership of the Lough has prevented its implementation.233 Sharon McMahon told us:

In 2007 we were told that by 2010 we would have this regime rolled out. Then it was 2012 and now it is at a stalemate—there is nothing. We keep bringing it up at our North-South Ministerial Committee meetings and with our sponsor branch.234

86.In contrast, voluntary agreement of a median line in Carlingford Lough has enabled the relevant statutory bodies to designate Marine Protected Areas and implement licensing.235 The territorial issue is a reserved matter for negotiation between the Irish Department of Foreign Affairs and Trade (DFT) and the UK Foreign and Commonwealth Office (FCO).236 Sharon McMahon told the Committee that the issue could be resolved by the Governments reaching a “management agreement”, as in the case of Carlingford Lough.237 The management agreement would be entirely separate from the wider jurisdictional issue but would allow the Agency to utilise its 2007 statutory powers. Ms McMahon stated:

The provision of a Management Agreement between the Department of Agriculture, Food and Marine and the Crown Estates Commission for Lough Foyle and Carlingford Lough is required, in order to confer the authority to the Agency to regulate and manage new and existing aquaculture licences. Once this is in place all other legislative processes can move forward to allow full implementation.238

87.The Minister told us that whilst there are “no current discussions” with Ireland on marine borders in the Loughs there are “ongoing discussions” about the management of aquaculture activities.239 Minister Creed has said that management of aquaculture in Lough Foyle “gives rise to legal and jurisdictional complexities” which are the responsibility of the Irish DFT.240 On 16 July 2018, Sir Alan Duncan, Minister of State at the FCO, responded to a written question about negotiations on a management agreement for Lough Foyle by stating that:

British and Irish officials last met in October 2017 when a number of issues were discussed including the Loughs, and the management of aquaculture in them, and they have been in regular contact since.241

88.Sharon McMahon also expressed concern that, in the event a management agreement is reached, the Agency could face challenges removing the existing unregulated oyster trestles:

It would be nice to be starting with a clean slate, but obviously there are these oyster trestles there that are increasing all the time. We have talked about that; we would need to go in even with force, maybe. To remove them you would need some back-up to go in and do that. There would definitely be a lot of legal challenges ahead because you are going in there and people already have land and have established an aquaculture situation on it.242

89.The dispute over maritime boundaries has resulted in environmental damage and economic disadvantage to the Lough Foyle area. The cause of the current crisis is the failure of the Irish and UK Governments to either resolve the jurisdictional issue or reach a management agreement for Lough Foyle. We recommend that the Foreign and Commonwealth Office concludes a management agreement with the Irish Government, within the next 12 months, that enables the Lough’s Agency to fully implement the 2007 Foyle and Carlingford Fisheries Order. We further recommend that the Agency be given the extra resources necessary to remove existing unlicensed oyster trestles.

Divergence of environmental regulation

90.The Loughs Agency has responsibility for a cross-border territory which includes over 3,600km of rivers in the Foyle and Carlingford catchment areas, two loughs and a section of inshore coastal waters. The Committee heard that “fish, poachers and pollution don’t recognise borders” and so inter-governmental cooperation between Ireland and Northern Ireland ensures management is effective across the entirety of the Agency’s catchment area (see Figure 6).243

Figure 6: Loughs Agency areas of responsibility

Source: The Loughs Agency Science Strategic Plan 2016

The Agency has two government sponsor departments, the Department of Agriculture, Environment and Rural Affairs (DAERA) in Northern Ireland and the Department of Communications, Climate Action and Environment (DCCAE) in Ireland. It operates on a 50:50 funding model with staff employed in both jurisdictions.

91.The Agency has the power to propose regulations within its jurisdiction to; make environmental adjustments, react to the most up to date science, make changes that arise from court cases and respond to stakeholder experience. When designing or amending regulations, the Agency must balance the regulatory ambitions of DAERA, DCCAE and Inland Fisheries Ireland, the organisation responsible for inland fisheries in Ireland.244 Loughs Agency regulations are approved by both governments and implemented simultaneously through the North-South Ministerial Council. The Agency is also able to pursue changes to primary legislation through its two sponsor departments. When asked about the potential impact of Brexit, Sharon McMahon, designated officer at the Loughs Agency, told us:

We depend on the relationship of our sponsor departments here in the north and in the south. They work quite closely with us and through the North-South Ministerial Council. For us, it is paramount that the relationships are maintained and, to be honest, I don’t see any sign of that relationship breaking down because we have been working so well cross-border for years. It is not something new to us. We are amazed when people ask about Brexit in particular because we do it day to day and have been for years and think nothing of it.245

92.The Agency has expressed some concern that, once the UK has left the EU, amendments to EU or UK law may mean the regulatory regimes in Ireland and the UK will “fall out of sync”.246 In the short term, however, the Agency has been clear there will be little change to the status quo. The Agency told us:

One of the issues that seem to cause confusion is that people are under the illusion that, on Brexit, all the existing regulations would be rescinded. As it stands, management of salmon netting or the management of no salmon netting, as it is at the moment, is enshrined in regulations [ … ]. They are part of domestic legislation in Northern Ireland. Unless they are brought before the [NI Assembly] Committee and rescinded, those regulations will stand.247

93.In the longer term, different environmental standards could develop between the parts of the Agency’s catchment which remain within the EU (areas in Ireland) and those in the UK. For example, the EU Water Framework Directive currently applies in both jurisdictions, which means the same interpretation and criteria are used to measure “good ecological status” in cross-border river basins.248 If the interpretation of this criteria were to evolve, in either UK or EU law, it is possible that different ecological standards could apply across a single cross-border river system. Sharon McMahon told us:

There is a risk in that when the UK leaves the EU that over time, different standards will develop. Techniques for assessing standards will drift apart with differing interpretations [ … ] Considerable work has been completed on inter-calibration between EU countries to try and ensure that we are all assessing the same thing to the same standards, and that interpretations are broadly similar. What is unsure is how this inter-calibration will be affected, and will the UK still take part in this process after Brexit?249

94.The Agency has responded to this challenge by proposing that its unique management model should be considered as a template for administering natural resources which straddle the border. The Agency said:

Given the considerable experience and knowledge the Agency has of implementing legislation on a cross jurisdictional basis, it could act as a facilitator for cross border co-operation, helping both jurisdictions to overcome wider potential jurisdictional issues in relation to environmental and fisheries management, in the cross-border region [ … ] The potential for the Agency as a vehicle to deliver cross border funding initiatives, environmental legislation and many other projects which will bring benefit to the cross border region after 29 March 2019 should not be ignored nor should it be underestimated.250

95.The Foyle Fisheries Act and the Belfast/Good Friday Agreement conferred a unique set of functions and powers on the Agency to manage, conserve and protect the area within its catchment. To ensure it fulfils its statutory objectives, the Agency constantly monitors the regulations in force within its catchment and proposes additional regulations and amendments where appropriate.251 Sharon McMahon told us that the Agency “must reserve the right” to seek amendments to relevant legislation pending greater detail about the outcome in the final Brexit Agreement.252

96.A key problem currently facing the Agency is that absence of a functioning Assembly is preventing it from bringing forward legislative changes. Power normally flows from the Northern Ireland Assembly to a department, subject to Ministerial direction and control.253 The collapse of devolved government in January 2017, means that civil servants, rather than Ministers, are currently running government departments. Without Ministers, Permanent Secretaries can implement previous Ministerial decisions, but they cannot take new decisions or introduce legislation. David Sterling, Head of the Northern Ireland Civil Service said:

Where it is clear that a new decision that is needed would be in line with the decisions of the previous Executive or Ministers [we can proceed]. If something different needs to be done, we do not have the power to do that. Indeed, we would be open to the risk of challenge if we tried to introduce new policies.254

97.On 6 July 2018, the Court of Appeal ruled that Northern Ireland civil servants who had granted planning permission for a waste incinerator had acted unlawfully. The judges found that it would be contrary to the letter and spirit of the (Good Friday) Agreement and the 1998 (Northern Ireland) Act “for such decisions to be made by departments in the absence of a minister.”255 The ruling has exposed a gap, created by the absence of Ministerial authority, in decision-making in Northern Ireland. The Northern Ireland Assembly and Executive have been absent for over 19 months and it is unclear when these institutions will be back in place to pass legislation and make ministerial decisions. Sharon McMahon told us:

The Loughs Agency has an ever increasing necessity for a number of legislative and regulatory changes to be introduced in the Foyle and Carlingford areas over the period from 2018 to 2020. We currently have a number of proposed secondary legislation awaiting Departmental Solicitors approval, and in addition the Agency has agreed changes to our primary legislation with our Sponsor Departments. In order for all changes to legislation to progress a functioning Assembly must be in place.256

98.The Agency has proposed changes to primary legislation which would introduce fixed penalties for fisheries offences such as angling for salmon during the closed season and possession of untagged wild sea trout.257 It is also developing secondary legislation which would; designate certain areas as rainbow trout fisheries, introduce a three day coarse fishing license and create an electronic carcass tagging system.258 Sharon McMahon described how delays in bringing forward secondary legislation can be damaging for the fisheries it manages:

In regulation, the Agency could still be challenged to issue 25 carcass tags per angler, as opposed to the 10 we currently issue–if we issued 25 the fishery would become unsustainable.259

99.The Loughs Agency, as a cross-border body, is ideally placed to manage the regulations that govern management of the river systems and loughs along the border. The Agency may face difficulties if it is required to balance two increasingly divergent sets of environmental regulations within its catchment area and so should be given the power to make sensible decisions on regulations itself. We recommend that the Loughs Agency be given the power, with the assistance and the oversight of the North-South Ministerial Council, to select the most appropriate environmental management strategy to regulate the areas under its jurisdiction and commensurate financial support and human resources to implement its decisions.

100.It is disappointing that the collapse of devolved government in Northern Ireland is preventing the passage of legislation recommended by the Loughs Agency for the protection of the natural environment within its jurisdiction. In light of the Court decision on the limit of civil service decision-making powers in Northern Ireland, we recommend that the Government establish a new mechanism to ensure regulatory decisions proposed by the Loughs Agency and approved by the North South Ministerial Council can be implemented.

202 Under the CFP, 0–6 nautical miles is exclusively national access (the Voisinage Arrangement is an exception to that), and so is 6–12 nautical miles with some exceptions set out in Annex 1 of the CFP Regulation. These allow specific Member States access to specific parts of a Member State’s waters.

203 Defra (FSH0004)

204 Professor Richard Barnes (FSH0008), Discussion in the Joint Committee on Agriculture, Food and the Marine Debate, 20 June 2017, Houses of Oireachtas.

206 Defra (FSH0004)

207 Bill 19 of 2017, Sea-Fisheries (Amendment) Bill 2017, Seanad Éireann

208 Explanatory Memorandum, Sea-Fisheries (Amendment) Bill 2017, 10 February 2017

209 Sea-Fisheries (Amendment) Bill 2017: Second Stage, Seanad Éireann debate, 8 March 2017

210 Sea-Fisheries (Amendment) Bill 2017: Committee Stage, Seanad Éireann debate, 22 March 2017

213 Q92, Anglo-North Irish Fish Producers Organisation Ltd (FSH0002)

220 (Miss Mcllveen) Hansard, Page 19, Volume 122, 3–9 December 2016, Northern Ireland Assembly,

222 House of Commons written question: answered by Secretary of State for Northern Ireland, James Brokenshire MP, 11 November 2016 (52620)

224 Defra (FSH0004)

225 Loughs Agency (FSH0013)

227 Oral Evidence to Northern Ireland Assembly Committee for Agriculture, Environment and Rural Affairs, 17 November 2016, Loughs Agency (FSH0013)

228 Loughs Agency (FSH0013)

229 Q373, Oral Evidence to Northern Ireland Assembly Committee for Agriculture, Environment and Rural Affairs, 17 November 2016

231 Loughs Agency (FSH0013)

233 The Foyle and Carlingford Fisheries (Northern Ireland) Order 2007, (Barry Fox) Oral Evidence to Northern Ireland Assembly Committee for Agriculture, Environment and Rural Affairs, 17 November 2016

238 Loughs Agency (FSH0013)

240 Dáil Éireann Debate, 13 February 2018, question from Deputy Thomas Pringle to the Minister for Agriculture, Food and the Maine [7135/18]

241 House of Commons, 18 July 2018, written question (164298)

243 Loughs Agency (FSH0013)

244 Loughs Agency (FSH0013)

246 Loughs Agency (FSH0013)

247 (John McCartney of the Lough’s Agency) Oral Evidence to Northern Ireland Assembly Committee for Agriculture, Environment and Rural Affairs, 17 November 2016

248 Loughs Agency (FSH0013)

249 Loughs Agency (FSH0013)

250 Loughs Agency (FSH0013)

251 Loughs Agency (FSH0013)

252 Loughs Agency (FSH0013)

253 Q10 [David Sterling] Q38 [Hugh Widdis], Oral Evidence to the Northern Ireland Affairs Committee inquiry into Devolution and Democracy - dealing with the deficit, on 24 January 2018, HC613

254 Q66 (David Sterling), Oral Evidence to the Northern Ireland Affairs Committee inquiry into Devolution and Democracy - dealing with the deficit, on 24 January 2018, HC613

256 Loughs Agency (FSH0013)

257 Loughs Agency (FSH0013)

258 Loughs Agency (FSH0013)

259 Loughs Agency (FSH0013)

Published: 15 September 2018