Committee stage in the Lords
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Baroness Miller of Chilthorne DomerLiberal Democrat- Quote
- This amendment seeks to discover from the Government why the powers of sea fisheries officers have been reduced from the status that they were given in the Sea Fisheries Act 1968. The reason given in the explanation from Defra for the downgrading from the powers of a constable is that it has not been carried over into the Bill, “because SFC officers do not currently use it and do not foresee using such a power in future. It is worth to note that MFA officers currently do not have this power and have expressed no desire to have it through the Bill. SFCs and their Association have supported its repeal”. I am very grateful for that frank note. The only reason I am a bit surprised is because this amendment came from members of sea fisheries committees who are concerned that when all this is being converted to a regime that will need more oversight and probably more enforcement, it seems very strange to reduce the powers of those who will need to enforce them. I await the Minister’s reply. I beg to move.
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The Duke of MontroseConservative- Quote
- It is interesting to consider the powers of enforcement officers and I was glad to hear what the noble Baroness, Lady Miller, had to say. Quite a lot of these powers will have to be exercised in the Scottish area by the Scottish Fisheries Protection Agency. On the question of powers, there is a strange phrase in the clause whereby officers have powers of “hot pursuit”. If someone misbehaves in their area, officers can follow them wherever they go. If officers near the border of their area see someone misbehaving on the other side of the line, it seems that they will probably have to telephone the MMO and say, “Would you empower me to chase this person?”. Has the Minister any views on how the officers would carry out those tasks?
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Lord Hunt of Kings HeathLabour- Quote
- I am grateful to the noble Baroness for raising this matter. She is right to focus on enforcement and ensuring that sufficient enforcement powers are available, particularly in light of IFCAs’ new responsibilities. It is an important point. We want all officers, including those working for IFCAs, to have available to them a more streamlined, modernised and coherent set of powers. The single set of core powers in the Bill replaces powers in numerous existing Acts, including, as the noble Baroness suggested, Section 8 of the Sea Fisheries Act 1968. Since the new core set of common powers will enable an officer of an inshore fisheries and conservation authority to perform all of its functions in the marine area, the authorities will not need to rely on the 1968 Act powers, since it would be pure duplication. As the noble Baroness suggested, we have not carried over the power of a constable because it is outdated and SFC officers simply do not currently use it. My understanding is that they do not foresee using it. However, they are not without the ability to take action where required. IFC officers will instead have a power to stop and detain persons suspected of an offence. This will be particularly useful in shore-based regulation such as recreational fishing or nature conservation offences. This is because these types of offences are often committed on or close to shore where the power to stop and detain may be necessary. On the question of “hot pursuit” raised by the noble Duke, my understanding is that hot pursuit means pursuing a vessel or vehicle from within the district where an offence is believed to have been committed to an area outside an IFCA’s jurisdiction. In this clause, hot pursuit of a vessel or vehicle into Scotland can take place when an offence has been committed within an IFC district. A power to engage in hot pursuit will obviously be useful on occasions where a vessel or vehicle moves out of a district in which they committed an offence in the hope that they will escape possible prosecution. Hot pursuit can be carried out on water or on land and applies to vessels or vehicles. This power applies only to Scotland, because in adjoining IFC districts and Wales, IFC officers will have powers to enforce without relying on powers of hot pursuit. I hope that that deals with this matter.
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- Baroness Miller of Chilthorne DomerLiberal Democrat
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- Everyone made the idea of hot pursuit sound rather attractive. I thank the Minister for that explanation and if he is content that the powers in the Bill are sufficient, I beg leave to withdraw the amendment.
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Lord Livsey of TalgarthLiberal Democrat- Quote
- I shall speak to most of the amendments in this group which address specifically matters concerning Wales. I am not enjoined to suggest legislation for Wales, because we have an Assembly, but in this Bill the primary powers for Wales reside within the Bill. These amendments include matters which are highly desirable by giving powers to the Assembly to ensure that many of the Bill’s objectives are completed. Amendment A237 relates to the duty of co-operation in Clause 165. It specifically directs Welsh fisheries managers—that is, Ministers—to co-operate with neighbouring fisheries management authorities. This is a highly desirable objective which has already been discussed in some of our debates. Welsh fisheries managers are not directed to co-operate with neighbouring fisheries management authorities, whereas IFCAs are. Such a requirement is crucial to securing the co-ordinated management of border areas, such as the Dee and Severn estuary Clause 165 provides an IFCA with a duty to, “take such steps as it considers appropriate to co-operate with” the IFCA adjoining a district, or, “the Welsh Ministers, in a case where that district adjoins the Welsh inshore region”. Clause 164 also provides IFCAs with the ability to, “enter into arrangements with any person or body for the provision… of services… in connection with the exercise of… functions”. These provisions do not currently apply to Welsh Ministers, and although an IFCA could use Clause 164 to initiate and enter into an agreement with the Welsh Ministers, in terms of specific fisheries management powers, these are one-sided. The Welsh Ministers do not at present have a duty to co-operate with IFCAs whereas the situation in the Bill is that IFCAs must co-operate with Welsh Ministers. So we are trying to put that right. The duty to take steps to co-operate with neighbouring fisheries managers should help to ensure that more effective, efficient and ecologically meaningful protection is achieved at border areas, such as the Dee and Severn estuary. This amendment should be straightforward as a principle, because comparable duties already exist in the Bill for Welsh Ministers. For example, in the marine planning provisions, Welsh Ministers are under a duty to take all reasonable steps to ensure that their plan is compatible with related neighbouring plans. Amendment A244 is quite detailed. The new clause extends duties to Welsh Ministers which are the same as those imposed in relation to IFCAs. It places sustainability, conservation and enhancement responsibilities on Welsh Ministers. It covers an immense amount of territory. To outline it, it is headed: “Duties of Welsh Ministers in relation to management of inshore fisheries”. It goes through a series of subsections, with Welsh Ministers managing the exploitation of sea fisheries in Wales, through exploitation of the resources of sea fisheries, conservation enhancement, and the different needs of persons engaged in the exploitation of sea fisheries resources in the district. It refers to animals, plants, and marine flora and fauna. It also refers to duties concerning migratory fish. In subsection (4) there is reference to, “salmon, trout, eels, lampreys, smelt and shad”. We debated that on Amendment A233 earlier on. So this mirrors that amendment, and imposes these duties on Welsh Ministers, so that we can have seamless responsibilities between the IFCAs and the Welsh Ministers and ensure that the protection measures are carried out to the same standard. In Wales there is now concern that if duties such as these are imposed on the Assembly, and in our view rightly so, there is a huge question of funding. We know, for example, that Defra has set aside £5 million of new money for sea fisheries committees and for IFCA work associated with the creation of the MMO in England. We are very concerned in Wales that the UK Government, if they want a seamless standard between England and Wales, should provide sufficient funding to ensure that this can occur. I know that this is a problem which occupies the members of the current sea fisheries committees. There are a number of duties which come into this; for example, with regard to protection vessels which involve considerable investment. Apparently the two vessels are in need of replacement in the two areas concerned at the moment in Wales. Stakeholder involvement, the transfer of management powers, scientific input, and the participation in EU marine conservation responsibilities are considerable costs which the Welsh Assembly Government will incur. It is hoped that it will get some assistance to do this properly. Amendment A244 covers those responsibilities. Our other amendment is Amendment A245, which would ensure that an annual report is produced by the Welsh Assembly Government so far as fisheries are concerned. At present, Welsh fisheries managers and Welsh Ministers are under no duties in the Bill equivalent to those of IFCAs or the Secretary of State to collect information relating to the exploitation of sea fisheries or formally to report on the discharging of fisheries management functions. Clauses 166, 168 and 169 require IFCAs to collect information and publish annual plans as well as an annual report. Clause 174 requires the Secretary of State to report to Parliament every four years on the conduct and operation of the IFCAs. The result of the lack of equivalent requirements is that fisheries management in Wales will be less automatically accountable and accessible than the regime in England. There are fewer guarantees that adequate information will be available on the exploitation of sea fisheries to inform management and the consideration of marine environmental matters as part of fisheries management. Welsh Ministers are under a duty in Clause 120 to report to the National Assembly on progress in securing a network of marine protected areas, so the Bill already contains precedents for reporting duties on Welsh Ministers. Therefore, our requirement for the responsibilities for producing reports in Wales for the inshore fisheries sector seems reasonable. There are two other amendments in the group that are not ours. If I may comment after they have been spoken to, I would welcome that opportunity. I beg to move.
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- The Duke of MontroseConservative
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- Following the noble Lord’s introduction to Amendment A237, I should say that we do not propose to move our two amendments in the group. The noble Lord, Lord Livsey, has brought up some important concerns about the effect of devolution on the effective management of inshore fisheries outside the control of the Secretary of State. The control given to Welsh Ministers means that they could pursue completely different and possibly contradictory policies in their inshore fisheries. Since the whole purpose of this Bill is to ensure a co-ordinated and consistent approach to the sustainable development of the marine environment, it is not surprising that we have spent so long debating its provisions that call the success of that objective into question. In some ways, part of the answer to the noble Lord’s question is bound to concern what powers are expected to be used by or available to the Welsh Assembly in producing its own measures for conducting marine management within the Welsh area. Of course, we may not be able to know in detail, but we would be interested if the Minister could throw any light on that question. As the noble Lord’s Amendment A237 highlights, co-ordination is of course important where the responsibilities meet, but also critical and unfortunately not so likely to happen automatically at a higher level. The marine environment is, of course, an interrelated whole, and increasing the number and complexity of bodies exercising control on it makes maintaining that overall consistency much harder. The noble Lord’s amendments address that concern quite neatly—even down to his last point about whether the Welsh Assembly would be required to produce a report—while still accepting the reality of devolution by ensuring consistency of duty, rather than of implementation, and proper transparency. We therefore support the amendments.
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Lord Davies of OldhamLabour- Quote
- I am grateful to noble Lords. I have a little information that I wish to impart with regard to one amendment and I want to be severely critical of another amendment, but I want to be extremely supportive of a third amendment. I do not know which order I ought to do it in—good news last, I think. Let me deal first with the factual position that I want to cover. The noble Lord asked about the powers of Welsh Ministers, and Amendment A244 addresses the question. Welsh Ministers have devolved powers for the management and enforcement of fisheries in Wales and are responsible for ensuring compliance in Wales with EC commitments and obligations. Further to that responsibility, the National Assembly for Wales and Welsh Ministers—as with all Ministers of the Crown—are bound by the Countryside and Rights of Way Act 2000 and the Natural Environment and Rural Communities Act 2006 to have regard, so far as is consistent with the proper exercise of those functions, to the purpose of conserving biological diversity in accordance with the UN Environment Programme Convention on Biological Diversity of 1992. They are also specifically bound when exercising sea fisheries’ functions to have regard to the conservation of marine flora and fauna under the Sea Fisheries (Wildlife Conservation) Act 1992. Also, as the noble Lord, Lord Livsey, knows only too well, Welsh Ministers have a duty placed on them by the Government of Wales Act 2006 to produce a sustainable development scheme. I might also add that the Welsh model will rely for funding on existing Welsh government funding schemes for fisheries. The marine environment duties have yet to be fully identified but will be costed and factored into existing budgets. That, I hope, clarifies our response to Amendment A244. I am critical of Amendment A245. I do not know whether I dare upbraid him in these terms, but the noble Lord seems to be guilty of trying to appropriate to Parliament what is devolved to the Welsh National Assembly. After all, Welsh Ministers are accountable to the Assembly as to the exercise of their powers and responsibilities under Welsh, UK and European legislation. It is therefore for the National Assembly for Wales to decide the manner in which Welsh Ministers discharge their functions, including the need or otherwise for Welsh Ministers to report annually to the National Assembly for Wales on fisheries matters. I am therefore critical of the proposal that the proper role of the National Assembly for Wales in this regard should be subject under this Bill to Parliament, as the noble Lord suggests with his amendment. Far from being critical of Amendment A237, I am glad that the noble Lord raised the issue. I cannot accept the amendment in its entirety at present, but I notice that it highlights an inconsistency in the Bill whereby inshore fisheries and conservation authorities whose districts adjoin the Welsh inshore region are subject to a duty to co-operate with the Welsh Ministers, who have no reciprocal duty. That is the burden of a well made point. I would like to see how we can address that inconsistency and repair the deficiency. On that basis of one win, one loss and one draw, I hope that the noble Lord can withdraw his amendment.
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- Lord Livsey of TalgarthLiberal Democrat
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- I thank the Minister for that intriguing reply. I am pleased that he has taken on board the point about reciprocal powers between IFCAs and Welsh Ministers. That can be accepted perhaps not precisely in the same form, but I hope that it may find its way into the Bill. I certainly have never had any ambitions to take powers away from the National Assembly for Wales and I would not wish to do that; I have many more thoughts about giving the Assembly more powers. Given the interpretation that the Minister places on Amendment A245, the Assembly is well capable of producing the report and I am sure that it will do so. Perhaps I am harking back to both the Government of Wales Act 1999 and the Government of Wales Act 2006, where we seemed to be insisting on reports on one or two matters. I am grateful for the Minister’s reply and I am glad that we have stirred up some positive vibes in respect of the amendments. I accept what he says about Amendment A245. I beg leave to withdraw the amendment.
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- Baroness Miller of Chilthorne DomerLiberal Democrat
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- The purpose of this amendment is to find out why the Government are determined that IFCAs will not have powers to borrow money. They will of course be financed primarily by the local authorities involved but, given that a local authority may well have given an indication of the size of precept that it is going to make to an IFCA in any one year so that it can budget, it is not unreasonable that an IFCA should be allowed to borrow money to pursue something that it knows it will need to do—for example, buy a new patrol boat. It might want to buy something in advance that would have to be financed over two or three years. By denying IFCAs the right to borrow money against a certain amount that they know they will get from the local authorities, the Government seem to be denying them the freedom to use their resources as best they can. In moving this amendment, I am seeking to find out what on earth the Government’s thinking is here. I beg to move.
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Lord GreavesLiberal Democrat- Quote
- I have three amendments in this group and shall speak also to whether Clause 171 should stand part of the Bill. I gave notice of my intention to oppose Clause 171 in order to allow the financial matters to be probed in a general way. I do not want to pursue it any further than that because the information that will be supplied by the Government in responding to these amendments will probably be sufficient. I support the amendments put forward by my noble friend Lady Miller, who puts her finger on an important issue. If IFCAs need to carry out capital spending, how will that capital spending be financed? If it is substantial capital spending and more than just a penny or two, I think that there is an issue. My Amendments A240A, A240B and A240C concern some of the details of the financing arrangements. The first one is intended simply to probe whether IFCAs will be able to have any sources of finance other than their constituent local authorities. It is a simple question. The Bill currently says: “The expenses incurred by the authority for an IFC district are to be defrayed by the relevant council or councils”. Are there to be no other sources of money of any kind? Amendment A240B would leave out lines 13 and 14. It is intended to probe how the calculations will take place, what the Government’s views are about how the calculations could take place and which proportion of the expenses are to be paid by each of the constituent authorities. The Bill reads: “The order may provide for the portion of the expenses payable by a relevant council to be calculated by reference to any circumstances whatsoever”. What sort of circumstances do the Government have in mind as to how this will be worked out? Amendment A240C concerns an apparently minor matter of wording but it relates to the extremely important matter of the local authority members of an IFCA being able, as the Bill suggests, to veto a levy on the local authorities. Presumably, it is unlikely that the authority would demand that the levy be higher than that proposed by the whole membership of the IFCA. Therefore, it would presumably be a requirement by local authorities that the IFCA’s expenses be reduced, perhaps in line with government financial constraints on local authorities. My amendment would make the provision slightly more positive. It would make the Bill read that the decision, “must be approved by a majority”, of local authorities, rather than, “may be vetoed by a vote”. There is a significant difference. If there is a simple veto, the normal procedure would be that the IFCA decides what the levy will be for a particular year and a special procedure of veto must then be invoked by the local authorities. I suggest that it should as a matter of course each year be put to the local authority representatives, so this is a positive rather than a negative provision. People may say that it does not make any difference in practice. However, it may well make a considerable difference to how this operates.
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Earl CathcartConservative- Quote
- The noble Baroness, Lady Miller, was quite right to probe the question of funding, but I am less than enthusiastic about allowing IFCAs to borrow money. Each IFCA will prepare a budget and will receive sufficient funds to discharge its commitments from local authorities and from its share of the £5 million to be given by Defra. If the MMO, the Environment Agency, Natural England or another body delegates any additional functions to IFCA, no doubt funds will follow. The noble Lord, Lord Greaves, mentioned capital commitments. Capital commitments are not made up on the spur of the moment, so there will be time for the next budget to be prepared for those capital commitments to be included and voted on accordingly, I should have thought. Amendment A240B, tabled by the noble Lord, Lord Greaves, addresses an interesting part of Clause 171, which refers to “any circumstances whatsoever”. That is an all-embracing, sweeping statement. It could mean anything. I, too, would like to probe the Minister on that. What is the rationale behind it? Will the same method be used as is used with the sea fisheries committees? What will be the norm? Will it be based on the number of the electorate or the number of miles of seashore for each area? How will it be done? What will be those other circumstances? That brings us to the question of who has the deciding vote on financial matters. We certainly subscribe to the principle that the body providing the funding—the councils—should have the final say. Those who have to account for the spending of public money to taxpayers should be able, by use of the veto, to maintain control over that money.
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- Lord Davies of OldhamLabour
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- I am grateful to noble Lords for tabling the amendments, which I hope are probing. I will do my best to respond to them. On the face of it, as the noble Baroness, Lady Miller, suggested, there are benefits from inshore fisheries and conservation authorities being able to borrow money to purchase a new patrol vessel, for instance, which can cost a few million pounds. However, we must consider two issues. In practice, because parent local authorities would have the ultimate responsibility for any inshore fisheries and conservation authority borrowing, there is not much to be gained from giving them a direct power to borrow. Parent local authorities would still have a veto over any borrowing, and local government finance rules mean that borrowing would still count against the parent authority, given its legal responsibility to repay interest and capital via inshore fisheries and conservation authority budgets. Having their own borrowing powers would not mean a great deal to the inshore fisheries and conservation authorities. They cannot bypass local authority approval for their spending plans in that way.
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- Lord GreavesLiberal Democrat
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- I am grateful for what the Minister said about my amendments. In practice, he is quite right; the fact that local authority representatives can veto the budget will mean that when it is worked out in any sensible system, it will be worked out consensually to ensure that there is no veto. However, there may be occasions when there is a veto, and my point is whether there should be a special procedure to invoke the veto or whether there should be an automatic stage in agreeing the budget; the budget is put together, is agreed by the majority of the committee of the IFCA, and then, as a further stage, is subject to agreement by the local authorities. If things are done well, such agreement will be formal, but that is my point; it is perhaps a matter of procedure rather than what should be in the Bill. I am grateful for what the Minister said about the other points, which I understand. I do not want to pre-empt what my noble friend might say, but I really want to understand—I do not yet understand this—how the capital expenditure will work. How will a large item of capital expenditure that is necessary for the functioning of an IFCA, whether it is for a building, a boat or anything else, be financed in practice? It is quite clear that, if it is big enough, it will not be financed simply out of revenue in a particular year. I do not think that it has been explained yet. As I say, I may be pre-empting my noble friend’s amendments, so I will sit down and let her have her say.
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- Baroness Miller of Chilthorne DomerLiberal Democrat
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- I thank my noble friend for that. I was just giving the Minister a chance to explain how it would be funded—my noble friend hit the nail on the head—which is why I tabled that amendment. The day-to-day expenditure may be a source of argument between local authorities that eventually come to an agreement, one hopes. The Minister has optimistically dismissed my noble friend’s amendment. However, there is a very real issue with capital expenditure and I do not think that we have heard a sufficient explanation from the Minister. In part, this is an issue of the Government trusting local government and the IFCAs to come up with appropriate solutions. It seems micromanagement to include in the Bill something such as this which cannot be done. Whether the IFCA or the local authority borrows the money, it will be subject to the same public spending rules, so why deny them the right to do it? I am sure that before Report the Minister will be able to afford me a better explanation of where the capital expenditure will come from.
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- Lord Davies of OldhamLabour
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- I will certainly have time to reflect on it before Report stage, so I might have more to add. But I do not think that it will be a great deal more. For the reasons I have expressed, the noble Baroness will understand that the Government do not think the authorities should have the borrowing powers. Therefore, capital expenditure will be the decision of the local authorities, which are responsible for the substantial funding. As to how local authorities will make a bid for the necessary capital, clearly, moneys will be available to local authorities to meet these needs. The noble Baroness is likely to say that that is one stage removed from the actors on the ground, the conservation authorities. But, again for the reasons I have identified, we do not think that there is any point in giving them powers to borrow when they are automatically subject to the position that the local authorities responsible will take. This is a productive debate in terms of identifying how it should work, but it is not productive in the sense that we could be persuaded of the only alternative to our model which is being countenanced; namely, that the conservation authorities should have the power to raise money, presumably without the veto from the local authorities. Surely, that does not make sense. If there is a veto from the local authorities, we are back to where the Government say we are, which is why I hope the noble Baroness will withdraw her amendment.
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Lord GreenwayCrossbench- Quote
- Something that the Minister said just a moment ago sounded a few warning bells. It would worry me if IFCAs could raise revenue through enforcement. Certainly, if money for patrol boats and whatever came from local authorities, I would be worried that overenthusiastic enforcement could lead to the sort of situation we have with speed cameras and that the whole system would be used just as a revenue-raising exercise, which we should avoid.
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- Lord Davies of OldhamLabour
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- The noble Lord, Lord Greenway, must tread carefully. He will remember that I have had to answer a few questions on how cameras work and whether they are revenue raising, and he will recall how much I denied that assertion. Local authorities were not beneficiaries as regards that form of transport. The Government agree with the noble Lord that the capital expenditure involved in the purchase of a patrol boat is substantial. The limited additional resources that the conservation authorities can get from permits should not be posited as a possible fund from which capital expenditures of such magnitude could ever be envisaged. That is why I return to the Government’s position that funding is the responsibility of the local authorities.
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- Lord GreenwayCrossbench
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- Patrol boats may be expensive to build but they are also very expensive to run. I cannot remember the exact figure, but the Army used to, and probably still does, run boats to patrol offshore firing ranges. I was very surprised that it was such a large sum of money. It is not just the cost of building these boats; it is the cost of running them as well.
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- Lord Davies of OldhamLabour
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- I accept that, which is why I gave the illustration of the present, successful collaboration to meet those costs, because we are talking not about small sums of money, but about very substantial ones.
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- Lord GreavesLiberal Democrat
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- The intervention of the noble Lord, Lord Greenway, put out the vision of all those smiley speed warnings, which light up when you are doing more than 30 miles per hour, being attached to the buoys in shipping lanes.
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Lord TylerLiberal Democrat- Quote
- With solar power?
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- Lord GreavesLiberal Democrat
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- Solar-powered, of course. My only problem is with the Minister saying that, on capital spending, he prefers the government scheme to IFCAs being able to borrow money. Personally, I have not heard enough to understand the government scheme or how it will work. If an IFCA has up to 16 local authorities in it, how will they all get together to borrow any necessary money or to make arrangements to be repaid for it from revenue? I can see how it could work, as local authorities, by and large, behave sensibly when they are faced with a problem and have to do something, but it would be nice to understand how the Government think their scheme will work.
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- Baroness Miller of Chilthorne DomerLiberal Democrat
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- I thank the noble Lord, Lord Greenway, and my noble friend for contributing to this debate. The Government are designing an unnecessarily bureaucratic scheme, which, as my noble friend said, could involve many local authorities having to run in circles to achieve the very thing that one body could achieve and pay back from its revenue. I see that I shall not persuade the Minister tonight, but my years in local government getting various capital schemes funded lead me to conclude that the Government’s design comes from those who have not had to operate within those constraints and, therefore, do not quite know what they are. I plead that they talk with their opposite numbers in the Department for Communities and Local Government before coming to a final conclusion. Meanwhile, I beg leave to withdraw the amendment.
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- Lord Davies of OldhamLabour
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- I beg to move Amendment A241. Amendments A241A, A241B, A244A and A376 are also in this group; these are all technical amendments.
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Lord Taylor of HolbeachConservative- Quote
- In our view, these amendments improve the Bill.
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Lady Saltoun of AbernethyCrossbench- Quote
- It may be a relief to your Lordships to hear that, with the leave of the Committee, I shall speak to my Motions to oppose that Clauses 185 to 244 stand part of the Bill altogether. The object of these Motions is to oppose the Question that Part 7 stand part of the Bill, which the Public Bill Office told me I could not do. Because I feared lest some draconian new prohibitions were proposed against our poor, hard-pressed fishermen, I examined Part 7, Chapter 1 and Schedule 15 rather carefully, checking their provisions with the Sea Fish (Conservation) Act 1967, and soon found that they made no sense at all as in many cases the words that this Bill seeks to alter are not in the 1967 Act. Obviously that Act had been amended, and indeed on asking a librarian here, I found out that it has. The librarian kindly printed out for me 16 pages of amended and additional clauses, the results of innumerable statutory instruments and miscellaneous Acts. This he was able to do courtesy of an organisation called LexisNexis Butterworths to which the Library subscribes, no doubt at vast expense, and without whose help it would have been almost impossible to discover the present state of the law. By the time the law has been amended yet again by the Bill before us, it will be a complete pig’s breakfast, and I pity anyone who needs to know what it is. I then examined Chapter 2 and found that the Sea Fisheries (Shellfish) Act 1967 had also been amended, although not quite so much. In Chapters 3 and 4, the relevant Acts were more recent and had not in the past suffered quite so much mauling, although the Salmon and Freshwater Fisheries Act 1975 had been amended. What I am asking the Minister to do, immediately after this Bill has passed through both Houses, is introduce a consolidation Bill to marry Part 7 to all those Acts, amended and otherwise, which Part 7 seeks to amend; or if that is too much like hard work, at least to marry Chapter 1 and Schedule 15, and perhaps Chapter 2, to their predecessors. Chapters 3 and 4 are less of a mess but it would be nice if the Government were to do the job properly while they are about it. Of course, in the process, Part 7, or the relevant chapters from it, could be repealed. It cannot be right to produce legislation which is such a mess that only a rich clairvoyant with a LexisNexis crystal ball can discover what the law is. At the very least Part 7, Chapter 1, should make it clear that it is the Sea Fish (Conservation) Act 1967, as already amended, that is being amended and so on. But even that is not going to help the fishermen on the boat very much. I wish that were all but there is one sentence in Clause 187(2) on page 108 which reads: “Any reference in this Act to a class is a reference to a class defined or described by reference to any circumstances whatsoever (whether or not relating to fishing or vessels)”. Perhaps I am very thick but as far as I am concerned that is complete gobbledegook and I wonder how many Members of the Committee can understand it. I began to get a faint inkling when I read the notes to clauses, but the fisherman on the boat does not have the notes to clauses handy, any more than he has LexisNexis Butterworths handy. No doubt the Minister can understand it and perhaps he will be kind enough to tell the Committee what it means. It should be put into plain English even if it is part of an Act of Parliament. I cannot remember when we last had a consolidation Bill through this House or whether we have had any in the life of this Government. It is high time that we had a few to keep the law tidy and comprehensible. It is not good enough to say that there has not been time. There has been plenty of time, just as much as ever there was; it is just that we have had too much new legislation, much of which we would have been much better without.
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- The Duke of MontroseConservative
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- My Lords, the noble Lady, Lady Saltoun, has tabled extensive amendments which have a wonderful rationale for recommendation because they would reduce the size of the Bill considerably. If we all agreed to her demands, 40 clauses would be removed. I applaud her courage. The sheer number of amendments helps to support the noble Lady’s argument that legislation relating to fisheries is complicated and confusing. New provisions and complex amendments to existing legislation mean that clarity is distorted and it is difficult for people to understand their legal position and to comply with the law. That is at the heart of the noble Lady’s argument. The new clauses in this Bill mean that another layer of complexity is added to fisheries legislation which will serve to make compliance with the law more difficult. Legislation cannot be useful if those it is intended to guide and limit are not sure where the boundaries are. I therefore support the noble Lady’s call for a consolidated body of fisheries legislation. There are a huge raft of measures contained in the provisions to which she objects—the Sea Fish (Conservation) Act, the Sea Fisheries (Shellfish) Act, the migratory and freshwater fish regulations—and the repeal of the obsolete fisheries enactments. While I am supportive of many of the clauses, I am also aware that their success depends on people being able to understand them and so to obey. With this in mind, I agree with the noble Lady’s suggestion that we must find a way to clarify fisheries legislation. Reading through these chapters, I find it quaint that one of the Acts to be repealed is the White Herring Fisheries Act 1771. There can be no doubt that the MMO would have difficulty in carrying out any function under the Bering Sea Award Act 1894. Could the Minister tell us what that was? Does he agree that there is a potential problem here? Does he agree that a consolidated version of all fisheries legislation might be useful? Do the Government have plans to make the legislation easier to understand? We all look forward to his response.
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- Lord Hunt of Kings HeathLabour
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- I congratulate the noble Lady, who has been very patient. I have spotted her on a number of occasions in the past few weeks as she has regularly come in to see what progress we have made. I take the noble Lady’s point to heart, and she made it in a persuasive way. What she said in essence was that the Act being amended here had been amended many times before and it would therefore be difficult for a lay person, let alone a hard-pressed fisherman, to understand. While I doubt that hard-pressed fishermen worry much about having Acts of Parliament with them as they go about their fishing, I understand that it is very difficult for people who have to go through legislation to understand it if it has been amended time and again. My own experience has been in the NHS, which also has suffered from the fact that considerable numbers of amendments have been made over the past 40 years. A consolidation Act was produced in 1977 but more amendments followed. It makes legislation very difficult for people to understand. The noble Lady referred to Clause 187(2), which does take some understanding. It is a catch-all clause that may relate to any circumstances—in other words, vessel length, vessel tonnage or gear type. That is what is meant, but I agree that on first reading that would be very difficult to understand. The Government have given serious consideration to producing new consolidation legislation. Unfortunately, so far it has not proved possible to produce a consolidation measure. The Bill has been our best opportunity to introduce necessary changes to fisheries legislation. Our problem is that if we miss this opportunity, it may be a considerable time before we will be able to make some of the changes that the Bill provides for. The amendments in Chapter 1 of Part 7 are relatively minor, and in these circumstances there is a lesser case for consolidation. Amending the Acts makes it easier for the reader to focus on the changes being made. As these are mainly amendments to enabling powers available to Ministers, there is less of a requirement to issue guidance; but we will ensure that a summary of the key changes is published on the Defra website. In a moment, I will describe what further guidance we can give.
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- Lady Saltoun of AbernethyCrossbench
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- I do not want to stop the present legislation; I just want a consolidation Bill to follow.
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- Lord Hunt of Kings HeathLabour
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- That is a fair point, which the noble Duke also made; the measures in the Bill have been broadly welcomed. The Bill has also gone through extensive pre-legislative scrutiny. I have two other points to make. The first is that in order to ensure the success of the legislation it will be important that the Government and the Marine Management Organisation do everything they can to ensure that those who are covered by the legislation understand fully what is in it. We will see what further information needs to be provided in leaflets and other guidance. The Environment Agency will issue complete guidance later in the year on matters that concern it, and we will look to the Marine Management Organisation to issue information and guidance too. I understand what the noble Lady has said about the consolidation measure. I wish I could wave a magic wand and promise one. I cannot do that, but I can say to her that she has raised an important, substantive point. I will make sure that the request she has made is considered, although, as I say, I cannot promise a positive outcome. She has raised an important matter.
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- Lady Saltoun of AbernethyCrossbench
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- I am grateful to the Minister for what he has said. I am not going to press any of these amendments, as I think he knew, but I am grateful for his reception of them.
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Lord Wallace of TankernessLiberal Democrat- Quote
- There is a series of amendments in this group, which I will briefly speak to. Amendment 245A has echoes of an amendment that we debated earlier today with regard to by-laws that the IFCAs could make. By now, though, we have moved on to a new part of the Bill, and we are dealing with regulations that the Secretary of State can make in relation to England or that Welsh Ministers can make in relation to Wales. The first amendment is again to make it clear in statute that regulations regarding equipment, methods or materials not only might relate to the prohibition of certain fishing gear but could actually require certain gear to be used. As I indicated earlier—I will not elaborate more—there is, as we are all well aware, a considerable amount of advanced technology in this field as well as research being done to try to ensure that new techniques and equipment are brought forward that will seek to eliminate or reduce by-catch. We want to ensure that if Ministers, Welsh Ministers or the Secretary of State were to make an order that required gear to be used, as opposed to restricting or prohibiting certain gear, that would be competent and within the powers available under statute. The other two amendments in this group relate to the Sea Fish (Conservation) Act. Section 3 of the original 1967 Act related to orders that could be made with regard to fishing gear, while Section 5 related to fishing activity. By virtue of the Environment Act 1995, there was an extension to allow the issues of the marine environment to be taken into account. The purpose of these amendments is to make it clear that the power to control fishing gear can indeed be used for marine environmental purposes as opposed to purely protecting undersized quarry species. The final amendment in the group, Amendment A246A, which would insert a new clause after Clause 189, is drafted in a similar spirit. Rather than referring solely to protection of the marine environment, quarry species or particular habitats, it seeks to promote ecosystem recovery. That wider objective would take account of gains that might be made through adopting the ecosystem approach. We are obliged to do that under the common fisheries policy and the Marine Strategy Framework Directive. Therefore, I believe that it makes sense to include it in the Bill. I beg to move.
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- Lord Taylor of HolbeachConservative
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- My name is attached to Amendment A245A. We debated these issues in an earlier debate. The noble Lord, Lord Wallace, moved these amendments with great skill. I have nothing further to add except to lend our general support.
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- Lord Hunt of Kings HeathLabour
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- I certainly agree with the noble Lord, Lord Wallace, that it is important to regulate fishing to ensure effective protection of marine habitats and the reduction of by-catch. It is worth making the point that we have introduced regulations in recent years with that purpose in mind. For example, in 2008, we introduced restrictions on the use of scallop dredgers and other damaging fish gear in Lyme Bay to protect the important seabed features in that area. In the same year we implemented a ban on scallop dredging in the Fal and Helford areas to protect the marine environment. These examples demonstrate that we already have flexible powers to hand to regulate fishing for marine environmental purposes. The powers we have used in these circumstances are those available under Sections 5 and 5A of the Sea Fish (Conservation) Act 1967. This has wide powers to allow prohibitions to be made to restrict fishing by any method so specified. Any order using these powers could therefore prohibit all specified methods of fishing other than those that do not damage the marine environment or species to be protected. Therefore, we do not think that the provisions sought by these amendments are needed as we already have powers to do what they seek to achieve, and those powers are actively being used. Amendment A246A seeks to add to the powers under Section 5A to restrict fishing for marine environmental purposes by including in the definition of “marine environmental purposes” the promotion of ecosystem recovery. Of course, we support the intention behind the amendment. However, we have clearly defined powers to achieve this aim. As I have argued on previous groups of amendments, the promotion of ecosystem recovery is too open-ended a concept to be placed in primary legislation in the way suggested. More precise commitments or duties on Ministers to conserve the marine environment are included in the habitats and birds directives and the Natural Environment and Rural Communities Act 2006. We can also exercise appropriate regulatory power in the areas that will be protected under marine conservation zones. If we are required to regulate or restrict fishing to meet these duties and commitments, the powers available under Section 5A can be used. The current wording of Section 5A is wide enough to encompass all elements of the marine environment where protection from fishing is called for, but we do not disagree at all with the substance of the noble Lord’s amendment.
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- Lord Wallace of TankernessLiberal Democrat
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- I am grateful to the opposition Front Bench for its support and to the Minister for his response and his general assurance that sufficient powers already exist. Ecosystems have been discussed on a number of occasions. No doubt when we reach the next stage of the Bill they will be discussed again once we have had a chance to see how all this fits together. The Minister referred to the powers and orders that the Government brought forward to try to ensure that safeguards are in place, and he mentioned at least two very recent orders that have banned, prohibited or restricted dredging. In this amendment and in the earlier amendment on by-laws with respect to the inshore fisheries and conservation authorities I was trying to address the issue of whether, rather than banning something, there can be a positive requirement to require that specific material or gear be used. I think that there is a distinction between positively requiring that something be used and using an order to prohibit a particular activity. I want to clarify whether making an order to require the use of particular gear is permitted. I am not necessarily persuaded that simply saying that because the order is there to stop things happening it can equally require things to happen. We may wish to consider that issue between now and Report. I very much hope that the Minister and his colleagues will consider it as well. In those circumstances, I beg leave to withdraw the amendment.
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- Lord Davies of OldhamLabour
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- In moving the amendment, I shall speak briefly to the other amendments in this group. The amendments all correct minor errors of drafting in Part 7 and in the related schedule. I hope that the noble Lord, Lord Taylor, is as enthusiastic about government corrections as he was the last time. I beg to move.
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- Lord Taylor of HolbeachConservative
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- No one could be churlish about the Government correcting their homework, so we welcome the amendments.
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- Baroness Miller of Chilthorne DomerLiberal Democrat
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- I make no apology for the fact that this amendment may take a little time, because it concerns two matters of immense importance. The first general matter that I must ask the Government about is whether they feel that the Crown Estate’s duty to maximise its returns may be at odds with some of the other aims of the Bill; for example, with regard to the Marine Management Organisation. It will be asking the Crown Estate to take less return, for example, from a highly protected marine conservation zone than, say, from a wind farm. That is the big issue. The amendment addresses a specific issue of enormous importance. The amendment deletes the provision by which the Crown Estate has a power under the Sea Fisheries (Shellfish) Act 1967 effectively to veto the granting of several regulating orders. I have very good briefing from the Crown Estate and the Shellfish Association of Great Britain. Both parties are very anxious to clarify the position that has been left following a court judgment. I know that the noble Baroness, Lady Wilcox, will speak to this amendment so I will not dwell for very long on the huge importance of the shellfish industry to this country, save to say that its final sale value is some £900 million, of which 80 per cent is from exports. The other point that I should bring to the Minister’s attention is that the immense food value of shellfish should not be underestimated. As long ago as when Collins produced its New Naturalist series, it was pointed out that an acre of mussel bed was by a factor of thousands a more efficient way of producing protein than an acre of beef field. This is obviously not a competition, but as we think about food security it is important to safeguard the good and sustainable sources of food. I am sure that the Minister is interested to make sure that the terrible situation hanging over the shellfish industry is resolved as soon as possible. In brief, what has happened as regards the court case is that some 10 years ago a marina developer applied for planning permission to build a marina in the Menai Strait near Anglesey. The foreshore belongs to Anglesey council and the sea bed to the Crown Estate. The grantees of the fishery order, the regional sea fisheries committee, claim that the development would be illegal, and the two landowners, despite their respective saving provisions in the order, have no right to allow the development to proceed. That area is, I gather, subject to a 60-year lease in terms of the shell fishery. Faced with this claim, the council and the Crown Estate instigated declaratory proceedings to determine their rights. The case has been through its initial court proceedings and the Appeal Court. The appeal is awaiting judgment. The difficulty is that the Crown Estate as a result has felt that it has been unable to consent to any new or renewal orders anywhere else around our coasts, because the problem is that if it consents unconditionally to the orders, it may not, in light of the present judgments, be afforded the protection of the saving clause. If the Crown Estate puts conditions on the consent, in the view of Defra, which makes the order, this would render the consent non-compliant with the legislation; so the Crown Estate would fail in its duty to maximise returns, Defra cannot do anything about it, and meanwhile the shellfish industry is suffering enormously. The one thing that a shellfish industry needs in order to develop and continue is certainty. It is quite stunning how much work it takes to get an order; it can take several years, it is very expensive and a number of conditions have to be fulfilled—a five-year management plan must be produced, the proposals must be advertised and any significant objection will provoke a public inquiry. The applicant has to pay for all this and the whole process can take up to two years. The Crown Estate says that it can give temporary permission for a period, which has increased from six months to two years, but the process of applying for an order is more than two years, and then the development of the bed can take decades until the operation becomes satisfactory. It is for that reason that I move the amendment. The amendment would effectively take the Crown Estate out of the loop of the order granting; it would prevent it having the duty to have a veto over the order in this situation. It is a problem that the Bill could solve. It desperately needs to be solved as otherwise the shellfish industry will very shortly be on its knees. I hope that the Government will be able to use the Bill as a vehicle for solving this very difficult situation. I beg to move.
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Baroness WilcoxConservative- Quote
- I support the noble Baroness, Lady Miller of Chilthorne Domer, in her amendment tonight. I declare my interests: I am the patron of the National Lobster Hatchery at Newlyn in Cornwall, I am a member of the Fishmongers’ Company which is home to the Shellfish Association of Great Britain, and I am vice president of the Fishermen’s Mission. I will try not to repeat what the noble Baroness has said, but this is very important to a particular group of people. The shellfish industry, as noble Lords have heard, has a good sales value: 80 per cent of what we catch goes abroad, which does well for our people and for the Treasury. The Shellfish Association of Great Britain is responsible for the shellfish industry development strategy, which is a whole-industry, Defra-supported project towards managed, sustainable shellfish production with a target to double molluscan culture. The only route to achieve this is through the several and regulating orders. These orders are vital to the shellfish industry throughout the United Kingdom. There are currently 11 regulated fisheries and 30 several orders operating round the coast of England, Scotland and Wales. This shellfish industry, based on fishery orders, was worth £26 million in the year to March 2006, and provided approximately 200 jobs. It is worth noting that there have been year-on-year increases in production from fishery orders, so that production in 2006 was more than double that of 2002. The reason for this growth is that fishery orders have been recognised as an effective management measure. Orders provide security for operators cultivating shellfish, and thereby encourage long-term investment in the sustainable development of the shellfish beds. Orders also ensure that shellfish beds are protected from overexploitation, from pollution or damage from disease, or other development activities. They provide the regulatory authority with the powers to manage fisheries sustainably, protect nature conservation interests, limit exploitation to named licence holders, set catch limits, ensure the fishery is exploited safely, and, most importantly, to recover the costs of management. The establishment of new several and regulating orders is a prerequisite to achieving targeted growth in molluscan shellfish culture. The Marine and Coastal Access Bill now before Parliament represents an opportunity, which may not recur for several generations, to legislate for the effective management and nurture of our marine environment and those who rely on it to earn their livelihood. The production and gathering of seafood should be high on the list. We need therefore to cater for all the issues that we can now identify which have a material impact on the objective. We have a threat to orders which has been well described by the noble Baroness, and at this late time I will not go through the many pages that I had listed to explain to everybody exactly what this all means. But in 2006, the Crown Estate mounted a legal challenge to a several order in the Menai Strait in north Wales, where it wished to promote the construction of a marina on the area of a mussel fishery which was already protected by an order. If this legal challenge had succeeded, all several and regulating orders in the United Kingdom would have been lost. Many of the orders could immediately be ruled to be ultra vires, and all would lose their protection from external development on fisheries. Pending the outcome of that legal action, the Crown Estate refused to grant adequate consent for renewal of expiring orders or new applications for orders. In the past, fishery orders have generally been granted for periods ranging from 10 to 60 years. A lot of time and effort has been invested, and a lot of families have invested themselves, in this work. However, as orders usually take several years to set up, the fact that the Crown Estate is now willing to give consent for only two years makes it virtually impossible to see this as a long-term way of running businesses in areas where other forms of employment do not so easily come about. We hear that orders are not a viable option and will not provide the long-term security required for investment in fisheries.
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- Earl CathcartConservative
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- This issue is one where the competing interests about which we have spoken so much have come to the fore. I hope that the Minister will be able to clarify what they or the Crown Estate would do following the judgment. On a wider note, the situation is an example of how the inconsistency between different bodies in the same sectors can hinder or be perceived to hinder sustainable development. Will the Minister explain what Defra or the related government public bodies are doing to inform the Crown Estate of wider government policy or local issues?
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- Lord Davies of OldhamLabour
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- I am grateful to noble Lords who have spoken on the issue. I declare an interest as I am inordinately fond of shellfish. I appreciate the way in which this relatively short debate has been conducted. I owe particular gratitude to the noble Baroness, Lady Wilcox, who has saved me the problems of describing a great deal about the industry and about the nature of the judgment and the problem that confronts us. Of course I am grateful to the noble Baroness, Lady Miller, who has drawn attention to this difficult problem. I do not think that any of us can underestimate the problems that we face in dealing with the issue and the attendant problems for the industry of which both noble Baronesses made us fully aware. The noble Earl, Lord Cathcart, also had some pertinent points to make. It is certainly the case that the Shellfish Act does not allow a several or regulating order to be granted on any part of the foreshore owned by the Crown without the Crown Estate commissioners giving their consent. Nor does it permit such orders to be granted without the consent of the Duchy of Lancaster or the Duke of Cornwall in relation to parts of the foreshore owned by them. The amendment removes the necessity for those consents. Would that the world was that straightforward. Of course, I recognise the intent behind the amendment—the attempt to overcome the delays in progressing some several and regulating order applications in England and Wales caused by the recent court case relating to the Menai Straits, which the noble Baroness, Lady Wilcox, described so accurately. Judgment, pronounced on appeal last month, found in favour of the shellfish cultivators, as she indicated, and the Sea Fisheries Committee, upholding the judgment at first instance. We are asked what the Government are doing about the matter. We are holding discussions with both the shellfish industry and the Crown Estate commissioners to assess the implications of the decision to try to find a way of resolving the current impasse in agreeing new orders for the benefits of all parties. Careful consideration is being given to the possibility of finding a way to resolve the issue by amending the Shellfish Act. Shellfish orders are important tools for the sustainable and safe exploitation of shell fisheries and we have restated our commitment to them by introducing an amendment in this Bill to the Shellfish Act aimed at ensuring that shellfish orders can be used effectively. The Bill is predicated on that assumption. Of course we are concerned by the potential implications for the progressing of any future orders arising out of this consent issue, but we do not believe that the issue can be resolved by the amendment. The amendment is too blunt an instrument in a difficult situation. The noble Baroness, Lady Wilcox, mentioned the two-year consent issue proposed by the Crown Estate, which recognised that that is an interim solution for the very reasons that she identified. Two years is scarcely a basis on which to establish and continue an industry and for investment to be made in it. That was an interim solution pending resolution of the ongoing court action. Once the court case is settled, we expect the Crown Estate to review this policy. We shall press it on this matter because we agree with the noble Baroness that a two-year consent is merely an interim period. I might add that a further potential appeal on this case can be made until 20 March. Therefore, the Government are in a particularly difficult position in responding to this amendment at this point and it will be recognised why we have to proceed with care. The problem with the amendment is that it does not balance properly the rights of the owners of the foreshore against those of the shellfish cultivators, and so it does not provide a long-term solution to the current problems. If the requirement to obtain consent were removed, it would, I am sure, be open to the Crown Estate commissioners to challenge the order, most likely using the public inquiry procedures under the shellfish Act, and at the cost of the applicant for an order. I cannot see how that would be a satisfactory solution for the industry. We believe that the only sensible way forward is through continued negotiation and discussion between the parties concerned. We believe that there is a genuine desire by all parties to address this issue, but there is the complication of the court case and I do not underestimate the significance of all that. I am not sure that I totally agree with the figure that the noble Baroness, Lady Miller, put forward for the value of the industry. We estimate the value of landings from several and regulating orders in England to be about £10.5 million—a substantial sum. This is an industry to take seriously. We know that, as the noble Baroness identified, it represents an extremely efficient way of providing a protein-rich, as well as a hugely enjoyable, food. I hope that the Committee recognises that we are grateful that the issue has been raised. It would have been neglectful had it not been raised in the context of the industry’s current difficulties. However, we are in very difficult circumstances at present and I hope that the noble Baroness will be satisfied that she has pressed the Government about as far as we can go this evening. There will be developments in the immediate future. We fully recognise our responsibility to the industry and are greatly concerned about the position in which we find ourselves. However, there is no simple solution to this issue. Certainly, the amendment would be a blunt instrument which would provoke a blunt, and probably effective, riposte, but that would not help the cause that the noble Baroness is seeking to advance with her amendment. Therefore, I hope that she will feel able to withdraw it.
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- Baroness Miller of Chilthorne DomerLiberal Democrat
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- First, I pay tribute to the noble Baroness, Lady Wilcox, for her tremendous work for the fishing industry in general and the shellfish industry in particular. I also pay tribute to her knowledge of the area. I know of only one monarch who died of a surfeit, so perhaps afterwards she will tell me who else it was besides Henry and whether the cause was something other than lampreys. On that basis, I also have to declare an interest, as there is nothing that I like better than an oyster. The Minister said that this issue is subject to the various court processes going through, and I agree. He then said that this solution was too blunt an instrument. However, I would have to reply bluntly to him that the Crown Estate says: “In essence, a simple and practical way forward is for an amendment to be made to the 1967 Act so that The Crown Estate’s consent is no longer required for an Order to be valid and in this respect, we agree with the proposed amendment that has been tabled”. Therefore, I say bluntly to the Minister that the Crown Estate is happy to give up that right and I am surprised at him for being quite so definite in dismissing our amendment. In fairness, the Crown Estate goes on to state that it would require a saving provision to be inserted in the enabling legislation to protect its rights, and would expect to be a statutory consultee, which seems entirely fair. The Minister has been much too dismissive of that as a solution. As the noble Baroness, Lady Wilcox, pointed out, appeal after appeal could drag on for years, which we want to avoid. Surely, if the industry itself and the Crown Estate are so near to agreement about the amendment, the Government could bring themselves to be a little more positive about it. I hope that we can reach that stage before Report. In the mean time, I beg leave to withdraw the amendment.
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