Date laid: 17 January 2019
Parliamentary procedure: affirmative
The purpose of these draft Regulations is to amend EU-retained legislation on fisheries to ensure that fishing within UK waters can continue to be regulated in a sustainable manner after EU exit. While the Department for Environment, Food and Rural Affairs says that the instrument is not expected to result in any reduction in regulatory oversight, it is clear that the UK’s future fisheries policy is a politically sensitive and significant aspect of the UK’s withdrawal from the EU. The Committee received a submission from Green Alliance raising concerns about the proposals which the Department has addressed. Given the significance of fisheries as a policy issue, the House may wish to explore further the approach the Government have taken with this instrument.
We therefore draw the draft Regulations to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.
1.These draft Regulations, laid by the Department for Environment, Food and Rural Affairs (Defra), propose extensive amendments to EU-retained legislation on the Common Fisheries Policy (CFP). According to Defra, the CFP comprises approximately 100 EU Regulations which impose a common approach to the sustainable management of fisheries across the EU and its waters, including UK waters.
2.This instrument proposes amendments to 31 of these 100 Regulations to ensure that the provisions can continue to operate effectively after EU exit. According to Defra, the instrument proposes the minimum technical changes that are necessary to preserve the status quo and to ensure that fishing within UK waters can continue to be regulated in a sustainable manner after EU exit. The Minister of State for Agriculture, Fisheries and Food, George Eustice MP, explains in the Explanatory Memorandum (EM) to the instrument that “further, and more substantive, amendments to retained EU law in relation to the common fisheries policy will be made via the Fisheries Bill and later amendment instruments, including amendments transferring functions from EU institutions to the UK”.
3.The Department told us that it intends to lay two further fisheries statutory instruments before exit day, one under the affirmative procedure in early February dealing with the transfer of powers from the European Commission (“the Commission”) to UK authorities, and the other under the negative procedure in late February, dealing with the most recent CFP Regulations which were not in force in time to be amended in this and earlier statutory instruments.
4.Defra explains that the draft Regulations are not expected to lead to any practical changes for the fisheries industry and that they do not alter the devolution settlements. The Department says that the devolved administrations were involved in the drafting of the instrument, and that it engaged with key stakeholders from the fisheries sector, food industry and environmental non-governmental bodies who were broadly supportive of the approach taken.
5.The Committee considered the draft Regulations when they were initially laid before Parliament as a proposed negative instrument under the EU (Withdrawal) Act 2018. The Committee recommended an upgrade to the affirmative procedure at the time, noting that the EM failed to demonstrate that the proposals would not change the management or regulation of UK fisheries, or adversely impact on the sector. The Committee also noted that the instrument dealt with a politically sensitive and significant policy area, and appeared to confer legislative functions and fee-raising powers which could be seen to trigger the requirement under Schedule 7, Part 1, paragraphs 1(2)(a) and (b) of the EU (Withdrawal) Act 2018 for the affirmative resolution procedure.
6.The House of Commons European Statutory Instruments Committee recommended an upgrade of the instrument to the affirmative procedure on similar grounds.
7.The Committee welcomes that the Department has accepted the recommendations of the sifting Committees and has laid the instrument under the affirmative procedure, providing Parliament with the opportunity to debate the proposals.
8.The Committee also welcomes that the Department has revised the EM in response to our concerns. Annex B of the EM now sets out comprehensively the rationale for, and impact of, the proposed amendments. This is helpful additional information: the draft Regulations propose to remove a number of requirements in relation to the reporting, monitoring and enforcement of the CFP and, while it is clear that some of these requirements currently relate to the Commission and therefore need to be corrected in the context of the UK’s withdrawal from the EU, the original EM did not explain whether the instrument would replicate or retain these requirements in any way, or whether their removal would result in a loss of oversight, protection and transparency.
9.We received a submission from Green Alliance that raised concerns about the instrument, suggesting that the proposals fail to correct deficiencies in retained EU law in important areas. We put these concerns to the Department and are publishing Defra’s response alongside the submission of Green Alliance on our website.
10.The key concern raised by Green Alliance is that the draft Regulations, by removing, for example, reporting requirements to the Commission and the European Parliament, fail to replicate important oversight functions that the Commission and European Parliament currently perform. Green Alliance said that this could undermine accountability and transparency in relation to the UK’s performance in meeting the requirements of its future fisheries policy after exit. Green Alliance also expressed concerns that the draft Regulations fail to replace the key role that the Commission currently plays in the control and enforcement of the rules of the CFP.
11.In response, the Department explained that:
“When the UK leaves the European Union, it will no longer be a Member State. Therefore, the Commission will not be able to oversee the application of the CFP within the UK. Consequently, references to evaluation by and reporting to the Commission have been removed in this instrument. The implementation and oversight of fisheries management in the UK will be the subject of new arrangements, as proposed in the draft Fisheries Bill and 2018 Fisheries White Paper, as well as the draft Environment Bill, consistent with the devolution settlements. The oversight function that the Commission currently holds over Member States could, for England at least, be provided by the Office for Environmental Protection (OEP), as detailed in the draft Environment Bill, published 19 December 2018. The OEP will be capable of holding government to account, is able to take enforcement action, and is required to monitor progress in improving the natural environment, as well as produce its own annual reports.”
12.The Department added that:
“[F]isheries administrations already have the power to adopt appropriate measures for ensuring control, inspection and enforcement of activities under domestic legislation. In addition, clause 31(4) of the draft Fisheries Bill would confer a power to make provision on matters including monitoring, or enforcing, compliance with the regulation of any matters mentioned”.
13.Green Alliance criticised the fact that there were no proposals to replace the important role that the EU’s Advisory Councils currently play in advising on, amongst other things, the implementation of measures, minimising unwanted catches and scientific research.
14.The Department explained that:
“Advisory Councils advise the EU on fisheries matters and will, therefore, have no involvement with the UK after exit. They play an important role for the EU, but we already have extensive involvement with stakeholders, including environmental NGOs and the fishing industry. We have a number of other models for consultation with stakeholders; work closely with fisheries science partnerships around the country; and have a multi-stakeholder expert advisory group to consider EU exit issues. We are working with the industry and NGOs to establish a replacement fisheries advisory infrastructure for the UK that can be put in place after we leave the EU.”
15.These draft Regulations propose extensive amendments to EU-retained legislation in relation to the CFP to ensure that fishing within UK waters can continue to be regulated in a sustainable manner after EU exit. While the Department says that the instrument is not expected to result in any reduction in regulatory oversight, the UK’s future fisheries policy is nevertheless a politically sensitive and significant aspect of the UK’s withdrawal from the UK, as demonstrated by the concerns raised with us by Green Alliance. The House may wish to explore further the approach the Government have taken with this instrument. We therefore draw the draft Regulations to the special attention of the House, on the ground that they give rise to issues of public policy likely to be of interest to the House.
1 , Session 2017–19 ( .
2 European Statutory Instruments Committee, 11th Report of Session 2017–19 (.
3 Secondary Legislation Scrutiny Committee (Sub-Committee A) Publications page: .