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Again, the scallop dredging example is relevant here: should IFCAs allow exploitation to continue, given the effects that such exploitation has had in the past on the seabed? It must be the past exploitation that is relevant. Again, I will make this clear in the Explanatory Notes, so that there is no doubt.

On the second part of the amendment, in relation to the recovery of marine flora and fauna, the Bill already requires IFCAs to do exactly that. The duty placed on them includes in Clause 149(2)(b) a duty to protect the marine environment from, or promote its recovery from, the effects of exploitation when managing sea fishery resources within their district. The marine environment is defined in Clause 177 and includes flora and fauna which are dependent on, or associated with, a marine or coastal environment. As such, the clause as drafted requires IFCAs to promote recovery of marine flora and fauna. If a habitat has been damaged in the past by fishing but is still able to recover, the authority will have to weigh that in the balance when considering appropriate controls on fishing. It cannot take as a baseline the condition of the district from a certain date and ignore what it was like in the past.

In terms of a duty to further conservation, I know there are those who think that such a duty should be added to help to drive the transformation of sea fisheries committees into inshore fisheries and

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conservation authorities. The Government do not agree. We discussed in Committee the conservation duties of IFCAs as set out in Clause 150. Our problem is that placing an explicit duty on IFCAs to further the conservation of the marine environment outside marine conservation zones would fundamentally alter and unbalance their primary duty to manage the exploitation of sea fisheries resources in a sustainable way. There is no question that IFCAs will have to balance the social and economic benefits of exploiting sea fishery resources with the need to protect the marine environment.

In a sense, the discussion on the previous amendments was all about how we achieved that balance and whether we have the wording right in the Bill. All of these are pillars of sustainable development and are important considerations. The problem is that the noble Lord would be introducing a hierarchy; that is where we have the problem. Our position is consistent with that of the MMOs and is in line with Government’s wider commitment to the principles of sustainable development.

In marine conservation zones, the duty to ensure that the conservation objectives are furthered will ensure that these sensitive areas are protected. However, it is fair to say that in other areas, it is fundamental that IFCAs are required to balance all the different aspects of sustainable development. That is why we have the problem with that part of the noble Lord’s amendment.

In Committee, the noble Lords, Lord Wallace and Lord Greaves, tabled Amendment A234B to ensure that IFCAs would be able to make provision in by-laws to compel fishermen to use particular technologies which seek to reduce or prevent by-catch. During the discussion, I confirmed that the Bill as drafted gives IFCAs the ability to propose by-laws of that type. Clauses 151 and 152 provide IFCAs with the power to make any by-laws which are required for them to meet their duty of managing the exploitation of sea fishery resources in their districts.

As I said to the noble Lord, Lord Wallace on two other occasions, I appreciate the desire to make clear that by-laws can be introduced to prevent or reduce by-catch. We will amend the Explanatory Notes to make sure that that is absolutely clear. Although I cannot agree with the noble Lord on the third substantive point of his amendments, I hope that on his other points I have reassured him that the Bill meets the purpose which he seeks.

Lord Wallace of Tankerness: My Lords, I am very grateful to the Minister for that very constructive reply to my amendment and, indeed, the amendments of the noble Lords, Lord Kingsland and Lord Taylor. I acknowledge his detailed comments on a number of aspects of my amendment and his willingness to amend the Explanatory Notes to clarify any lingering, lasting and remaining doubt. I also thank him for offering to clarify the Explanatory Notes on an amendment which I have not moved at Report stage, but to which I spoke in Committee. The spirit of that is recognition of the willingness on all sides of the House to try to ensure that these new authorities work in a productive way to balance the interests of fisheries and conservation.

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Obviously, the Minister is not willing to agree with the amendment in so far as it aims to “further” conservation, but it is fair to say that by accepting and agreeing to the amendment of the noble Lord, Lord Taylor, the Bill as it leaves Report stage is in a better position than it was when it came to Report, in terms of trying to place a coherent set of duties on the IFCAs. I beg leave to withdraw the amendment.

Amendment 120C withdrawn.

Amendment 121

Tabled by Lord Kingsland

121: Clause 149, page 91, line 23, after “exploitation,” insert “in a way which is consistent with sustainable development,”

Lord Kingsland: My Lords, I apologise to the Minister for misinterpreting the expression on his face when I spoke on this matter earlier. I accept that, given the way in which “sustainable development” has been defined in other parts of the Bill, the wording of Amendment 121 is inappropriate. I was extremely pleased to hear him speak to the amendment that he tabled in conjunction with my noble friend Lord Taylor, which I accept meets, in substance, my concern.

Amendment 121 not moved.

Amendments 121ZA to 121ZC

Moved by Lord Taylor of Holbeach

121ZA: Clause 149, page 91, line 23, at end insert—

“( ) take any other steps which in the authority’s opinion are necessary or expedient for the purpose of making a contribution to the achievement of sustainable development, and”

121ZB: Clause 149, page 91, line 25, at end insert—

“(2A) The Secretary of State may give guidance to the authority for an IFC district with respect to the performance of its duty under subsection (1).

(2B) The Secretary of State must give every IFC authority guidance as to how the authority is to perform its duty under subsection (1) so as to make a contribution to the achievement of sustainable development.”

121ZC: Clause 149, page 91, line 39, at end insert—

“(5A) The Secretary of State must publish, in such manner as the Secretary of State may determine, any guidance given to IFC authorities by virtue of subsection (2B).

(5B) An IFC authority that has been given any such guidance must provide any person on request with a copy of the whole or any part of any such guidance.”

Amendments 121ZA to 121ZC agreed.

Amendment 121A

Moved by Lord Hunt of Kings Heath

121A: Clause 149, page 92, line 4, after ““salmon”” insert “, “smelt””

Lord Hunt of Kings Heath: My Lords, I am introducing government Amendments 121A, 122A, 122B, 122C, 122D, 122E, 122F, 126C and 130tocorrect drafting errors. These are all minor and technical amendments.

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Amendments 121A, 122A, 122C, 122D and 122F ensure that references to smelt are restricted to the migratory species of smelt—in other words, European smelt—and not the marine species, or sand smelt.

Amendment 122Bensures that the terminology in Schedule 27 to the Water Resources Act 1991 mirrors that used in Schedule 25. Schedule 27 gives the Environment Agency the power to introduce by-laws quickly in response to emergency situations. Schedule 25 sets out how the agency may use its ordinary by-law-making powers. I am enormously grateful to the noble Lord, Lord Greaves, who queried in Committee the use of the terms “physiographical” and “geomorphological”. I have written to him setting out the reasons why the terminology is necessarily different in the various parts of the Bill.

Amendment 122Eensures that “conservation”, which is defined in Section 111(4) of the Scotland Act 1998, includes the protection of the environment not only of salmon, trout, eels and freshwater fish but also of lampreys, smelt and shad.

Amendments 126C and 130 amend Clause 313 to clarify that amendments to the British Fishery Limits Act 1976 arising from the creation of the exclusive economic zone do not extend to the Crown dependencies and that changes to that Act arising from the creation of the Welsh zone apply to the same extent as the Act. I beg to move.

Earl Cathcart: My Lords, I thank the Minister for tabling these amendments to ensure that smelt are properly covered and for the useful letter explaining the intention behind them. I am pleased that the forensic examination of the detail of this legislation in Committee and the amendments that were tabled, if not debated, on individual species were not wasted. I give my full support to any clarification of the varieties of smelt and the duties of the Environment Agency with regard to them.

4.45 pm

Lord Livsey of Talgarth: My Lords, I welcome this amendment and those associated with it. I suppose we could say that one is the smelt amendment and the other is the shad amendment.

Speaking as someone who fishes regularly, I believe it is extremely important that smelt, or smelts as they are called in some parts of the British Isles, are protected. There is no doubt that, particularly with electrical generation through turbines, a large proportion of smelts have been wiped out when travelling downstream. This is a very serious matter because they never come back to fresh water if some of their number are slaughtered at that stage. This indicates that fish pass technology needs to be improved tremendously. It is easy to say, “Oh well, we’ll put something in the estuary of this river and the fish pass will go in”, but that is not good enough. The mature salmon may be able to get upstream sometimes but on the way back the small smelts, which after all are the seed-corn of the next generation of salmon, are destroyed. Therefore, it is particularly important to include this provision in the Bill.

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I am very familiar with the River Wye and the River Usk. The shad is an important and rare species, not only in the British Isles but in Europe, and it needs protection. Lampreys, which are extraordinary fish—they look like eels but have flat noses—also need protection. Indeed, the lamprey is an extremely important species in the Severn, Wye and Usk. I think that that illustrates the importance of these amendments—in particular, to migratory species.

Lord Hunt of Kings Heath: My Lords, I thank the noble Earl and the noble Lord for their support for the amendment. The noble Lord, Lord Livsey, made some very important points. We are limiting references to smelt in the Bill to European smelt because of their different migratory habits. The European smelt is migratory and is, we think, properly included under the Environment Agency’s duties and responsibilities, while the sand smelt is an inshore marine fish. It does not occupy freshwater habitats in England and Wales and should therefore remain outside the Environment Agency’s remit. However, sand smelt can be found in freshwater habitats further south in Europe. Should the situation change in England and Wales, we could consider using the order-making power in Section 40A of the Salmon and Freshwater Fisheries Act 1975, as inserted by Clause 211 of the Bill, to extend migratory freshwater fisheries legislation to sand smelt. It may also be worth pointing out that the smoult is a young salmon and is a completely different species from the smelt. I am sure that all noble Lords were aware of that.

Amendment 121A agreed.

Amendment 121B

Moved by Lord Livsey of Talgarth

121B: After Clause 180, insert the following new Clause—

“Duties of Welsh Ministers in relation to management of inshore fisheries

The Welsh Ministers shall manage the exploitation of inshore fisheries in Wales to ensure that the exploitation of inshore fisheries’ resources is carried out in a sustainable way.”

Lord Livsey of Talgarth: My Lords, I am very pleased to put forward this amendment, which incorporates the duties of Welsh Ministers in relation to the management of inshore fisheries. It is important that it is spelt out in the Bill that:

“Welsh Ministers shall manage the exploitation of inshore fisheries in Wales to ensure that the exploitation of inshore fisheries’ resources is carried out in a sustainable way”.

The amendment is a directive to Welsh Ministers to ensure that this is carried out sensitively. Indeed, there are very sensitive fish stocks in the Welsh inshore area. On the previous amendment, I mentioned migratory fish as well as native marine species. When fish species are rare, sparse or under threat, the sustainable management of inshore fisheries is vital.

I do not believe that this will be difficult for Welsh Minister to absorb. I was involved in the other place in the passage of the Government of Wales Act 1998,

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when sustainability was written into the legislation, and it is incorporated into all the environmental duties of the Welsh Assembly. This merely underlines that. I am sure that, if it is included in the Bill, Welsh Ministers will carry out this duty. I beg to move.

The Duke of Montrose: My Lords, once again we return to the question of whether devolved legislatures and Executives share the concerns and priorities that have been established here in Westminster. I have no expertise in drafting, but it is a good idea that Welsh Ministers are given rather more direction on their duties. However, I wonder whether a new clause is needed or whether there is scope to include that in Clause 180 itself. I share with the noble Lord, Lord Livsey, the concern that such management will be effective and not inconsistent with the neighbouring IFCAs in English offshore waters. I support the amendment.

Lord Davies of Oldham: My Lords, I shall speak to this amendment and the government amendments in the group, which are relatively minor compared with the important issue raised by the noble Lord, Lord Livsey, in Amendment 121B, which is the main subject of the debate.

The amendment, as identified by the noble Lord, would put a duty on Welsh Ministers,

I say at the outset that Welsh Ministers have decided to take direct responsibility for all sea fisheries management in Wales, which in practical terms means a consistent approach to fisheries’ management throughout Welsh coastal waters. I know that the noble Lord, Lord Livsey, will welcome that intention.

We discussed a similar amendment in Committee when it was explained that Welsh Ministers have a statutory duty under Section 79 of the Government of Wales Act to make a sustainable development scheme. The scheme must set out how the Welsh Ministers propose to promote sustainable development in the exercise of their functions, and they are under an obligation to report each year publicly on progress in implementing its provisions. Welsh Ministers are committed to embedding sustainable development within all their functions to ensure that it is at the heart of the Assembly Government’s work. I understand that later this week they will publish a revised scheme confirming that sustainable development is a central organising principle of the Welsh Assembly Government and that that commitment is underpinned with specific actions to ensure that sustainability is part and parcel of their work.

We also said in Committee that the Welsh Ministers are subject to the requirements of Section 1 of the Sea Fish (Conservation) Act 1992, which requires that while discharging their functions under the Sea Fisheries Acts they must have regard to the conservation of marine flora and fauna and endeavour to achieve a reasonable balance between that consideration and any other consideration to which they are required to have regard.

The House may also note that the Welsh fisheries strategy already includes a commitment to take an ecosystem approach to fisheries management. In

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recognition of those duties, the Welsh Ministers have signalled their desire to manage all fisheries sustainably, rather than single out the inshore region. Welsh Ministers also made a commitment that the Welsh Assembly Government single enforcement team, which will include staff from the current sea fisheries committees, will undertake fisheries and marine enforcement jointly. That is in direct response to what I think is the noble Lord’s objective, to the need to take an ecosystem approach to fisheries management, and to the expectation and need to manage the wider sea fishery resources given by the Bill.

I hope that I have explained why the Government believe that there is no need for a duty of sustainability in the terms proposed, because the Welsh Ministers have those obligations and are freely and openly stating, including in a statement this week, their commitment to sustainability and the development of an ecosystem approach to fisheries management, rendering the amendment unnecessary.

During Committee, the noble Lord, Lord Livsey, moved an amendment that would require Welsh Ministers to co-operate with adjoining inshore fisheries and conservation authorities. We said that we would look to accept the intention behind the amendment. We have looked at that matter with considerable care. It is apparent that a duty to co-operate would be difficult to apply in practice, due to the interplay between Part 6 and existing powers. As the noble Lord will know, Welsh Ministers already exercise a range of IFCA-equivalent functions without a duty to co-operate with those who exercise similar duties in England. Clause 180 merely tops up those functions where they do not already have them.

The Government do not want to change the terms of the Welsh settlement by imposing new duties on Welsh Ministers’ existing functions, nor would it be sensible to impose a duty to co-operate only on their new functions, which are more limited than their existing obligations. However, I give the noble Lord this assurance, because I know the intent behind his contribution in Committee and his amendment today. I confirm that Welsh Ministers are actively considering cross-border working arrangements and have made a statement to the Assembly giving the assurance that Welsh Ministers will seek memoranda of understanding with the inshore fisheries conservation authorities that border Wales and the Marine Management Organisation to facilitate joined-up management.

I can also confirm that Welsh Ministers have asked the stakeholder advisory committee to develop options for the appropriate reporting levels to maintain the transparency of fisheries management. I hope that that offers reassurances on the point. We said that we would respond to the noble Lord’s amendment. On further inquiry and having examined the issues in Wales closely, we have reassured ourselves that his objectives are already subscribed to by Welsh Ministers and the Assembly.

I turn to a slightly different but related matter. Government Amendments 121C and 121D would ensure that Welsh Ministers had the same powers and functions to regulate inshore fisheries as inshore fisheries and conservation authorities will have in England, to make it four-square in those terms. Amendment 121D is at

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the heart of that. It would insert a new provision into Section 27(1)(c) of the Wildlife and Countryside Act 1981. Its effect would be to enable Welsh Ministers to appoint authorised persons under Section 27 in the same way as the Bill will give inshore fisheries and conservation authorities the power of appointment. That is a simple matter of maintaining parity of powers and functions for the two authorities, which will be required to carry out exactly the same job. Under Section 27, authorised persons may kill birds for purposes relating to fisheries or fishing.

5 pm

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