Moved by Lord Lansley
36: Clause 2, page 3, line 36, at end insert—“(5A) If the fisheries policy authorities (or any of them) believe that a statement under this Act is or would be, if made, inconsistent with their policies, they may request an independent reviewer, which the Secretary of State must appoint, to report within 6 weeks.(5B) The Secretary of State and fisheries policy authorities must have regard to the report of the independent reviewer appointed under subsection (5A) in making a JFS thereafter.(5C) The Secretary of State must have regard to the report of the independent reviewer appointed under subsection (5A) before setting out policies in a Secretary of State fisheries statement under section 4, which would otherwise be included in the JFS.”Member’s explanatory statementThis amendment would interpose an independent review, if requested by an authority, if there is a difference of view over policies. It would seek to resolve disputes between authorities before policies are set out in a Secretary of State’s Statement, rather than in a JFS.
My Lords, I would be grateful if noble Lords would look at the revised version of Amendment 36 on the supplementary Marshalled List. It is revised not because I have changed my view about what it should say but because there was a transcription error on the Marshalled List. If one is referring to Amendment 36, I would be grateful if one would look at the version on the supplementary list. The difference is that the revised version says “6 weeks” for the report of an independent reviewer, not “six months”.
This is my best effort thus far to meet the test that my noble friend set us on Monday afternoon, when he said that this Bill had been through the mincer to an extent beyond that which most Bills do. He said any change had to meet the test of,
“Gosh, I wish we’d thought of that.”—[Official Report, 2/3/20; col. 421.]
So this is the amendment that I am hoping the Government might wish they had thought of.
Why do I put it forward? It is like lawyers writing contracts. When people write a contract together, they often sit down and write it on the basis of the agreement they plan to come to. The lawyers carefully explain to them that the purpose of the contract is not simply to give effect to the agreement but to explain what happens when things go wrong. Legislation has to be like this as well; it has to explain what happens if there is no agreement.
My Amendment 36, and indeed this group, provide an opportunity at this stage to look at the process of establishing joint fisheries statements and the Secretary of State’s fisheries statements. I think what we need to do is present that challenge in question. Discussions on the Bill, and between the fisheries authorities of the United Kingdom, have gone very well. However, this does not mean that we cannot be in a position where there might be an element of disagreement about the policies that should be pursued by the respective authorities.
One might say that the Secretary of State writes the policies that they want to pursue in a Secretary of State fisheries statement, that these will no doubt be the reserved matters, and that the respective fisheries policy authorities will set out their own policies on the non-reserved matters. It is not like that, in my view, for two reasons. First, with regard to replacing the common fisheries policy, the industry, if there is no common United Kingdom policy, wants to see at the very least a degree of consistency, not least because there are some objectives that have to be pursued together. We do not have to go back over all of these, but the equal access objective, for example, means that there must be a degree of co-ordination and consistency built into the structure of the licensing processes.
The second reason is that the Secretary of State’s fisheries statement is not simply about reserved matters: it is about quota and how it is used. As we will discuss when we come to Clause 23 and subsequent clauses, the use of quota and the determination of fishing opportunities can override all the devolved matters.
I should say that I was prompted to write Amendment 36 by the National Federation of Fishermen’s Organisations, which has said for some time that it wants a dispute resolution mechanism. It wants the fisheries policy authorities, so far as possible, to agree, and for their policies to be reflected in a consistent fashion in a joint fisheries statement. This is something we should endorse. The NFFO did not, however, suggest how the dispute resolution should function, so I took that upon myself—so any deficiencies in the drafting of the amendment or the proposed mechanism lie at my door, not at the NFFO’s.
The NFFO wants a dispute resolution mechanism because it is concerned that it will not otherwise be possible to deliver the equal access objectives, and that things like the economic link requirements under the licences would diverge significantly and cause difficulties for the industry. It feels that devolution is a highly desirable aspect of making decisions, but understandably it does not want this to be done at the cost of the industry finding conflicting and inconsistent decisions in relation to these objectives.
I commend Amendment 36 and will refer very briefly to Amendments 66 and 68, which are also in this group. This takes us into Schedule 1, which is about the process for making the joint fisheries statement and the Secretary of State fisheries statement. At the moment—and I find this interesting—the policy authorities will be publishing a consultation draft. Unless I am mistaken—and I will be glad to be corrected by my noble friend if so—this means that it is not a formal consultation but the publication of a draft at a suitable moment: one on which the Government say that they are happy to receive representations and that they will draw it to the attention of all interested persons.
My amendments probe what the Government’s actual intentions are. I think that the consultation draft—as we need to hear—will be published at a point when decisions have not been finalised, and must be brought to the attention of the people whom it affects. I instance the fishing fleets—not only those that operate in our coastal waters but also those that do so in more distant waters, because we are dealing with the determination of fishing opportunities that could extend beyond our own exclusive economic zone.
I do want—and look to my noble friend to offer—assurance about the way in which the Government and the fisheries policy authorities will go about the processes of securing representations at the right time from the right people. I beg to move.
My Lords, if nobody else wishes to speak, I want to do so on behalf of my noble friend the Duke of Montrose, who unfortunately could not be here today but who gave me permission this morning to speak to his two amendments in this group, 40 and 47.
Amendment 40 states:
“If, in the light of a review, the fisheries policy authorities conclude that changes are not required to the JFS, they must prepare and publish, as soon as reasonably practicable, a statement setting out the reasons for that conclusion.”
My interpretation of this is that if, in the light of a review, the fisheries policy authorities conclude that changes are not required to the joint fisheries statement, they must prepare and publish as soon as practicable. In other words, there must be as much openness as possible in the statement setting out the reasons for that conclusion.
Amendment 67 states that the period should be
“not less than 28 days”.
This means that the facts must be realistically and correctly stated in the document that would be issued. This decision ensures that the scrutiny period for consultation on the joint fisheries statement should be long enough to ascertain all the facts. It is a safeguard that should be supported, and I submit that it is in the interests of everyone involved. The purpose is to prevent a conclusion being rushed out when all the scientific evidence may need to be taken into account for the cause of sustainability.
I do not think there is anything more I can adequately say on this subject, as the facts speak for themselves.
My Lords, I am grateful to the noble Lord, Lord Selkirk of Douglas. I too was going to speak to Amendments 40 and 47 on behalf of the noble Duke, the Duke of Montrose—the Law Society of Scotland had sent me a very extensive briefing—but the noble Lord has made all the points that I would have made.
On issue of the 28 days, we have Amendment 69, which mirrors Amendment 67. The Bill currently requires each of the fisheries policy authorities to specify a period for scrutiny of the consultation draft of the joint fisheries statement, but no definition is set out in paragraphs (3) and (4) of Schedule 1. There is no timescale attached to the definition, and it is important that we have one.
The Bill provides that each fisheries policy authority must specify a period for scrutiny of the consultation draft by the appropriate legislature. To rectify this, we propose a minimum period of 28 days if scrutiny must be undertaken. That is important, so I echo what was said by the noble Lord, Lord Selkirk.
My Lords, I support the amendment in the name of the noble Duke, the Duke of Montrose, and have added my name to it. I know that my noble friend the Minister will say that the amendment is not needed, but I would argue that it is. If there were no changes to the joint fisheries statement, we should be able to understand why that was the case and why everyone had agreed. It would be helpful to have more openness and transparency in that regard.
My Lords, I have a number of amendments in this group which I am sure the Minister will be able to bat away quickly and easily. I congratulate the noble Lord, Lord Lansley, on his amendment: it is a problem that I thought we would never have, but he suggests a way to resolve it and I am sure that he would make an excellent independent adviser if it should ever arise.
Clause 3(1) states:
“The fisheries policy authorities may at any time prepare and publish a replacement JFS.”
It comes back to trying to make the rules clearer. Can one of the authorities trigger this, or does there have to be a consensus? I look to the Minister for guidance on what precisely that mechanism is.
I always like simplification in life. While I understand what the Bill is trying to do in requiring two fisheries statements, it would be great to have a combined document so that everybody could understand how the policy looks as a whole. That would be terribly useful to the consumers of the legislation; that is, the industry and all the stakeholders.
I would be interested to hear from the Minister how the department came to six years as a review period. We have American presidential elections every four years, the World Cup is every four years, the Olympics are every four years, and fixed-term Parliaments are every five. Why six? It would be better if it was five. Six years seems a long time in terms of marine ecology and fisheries statements. It should be looked at just a little more regularly.
My Lords, we have a relatively simple amendment, Amendment 74, in this group. The Bill requires the fisheries policy authorities to produce periodically a report on the extent to which their policies as set out in the joint fisheries statement have been implemented. Where there is an omission, the Secretary of State is required to intervene.
The amendment would require the Secretary of State, if required to produce a report on the policies omitted from the joint fisheries statement, to consult not only the devolved Administrations but a wider group of representative bodies on the content of the report. It is a straightforward amendment which seeks to fill a gap in the consultation provisions made elsewhere in the Bill. The provision in Schedule 1 does not spell this out in sufficient detail.
On an earlier amendment, the Minister read out a list of representative bodies which the department regularly consults, which of course is welcome, and described it as an “expert advisory group”. However, that is different from a statutory requirement to consult at various stages of policy production and review. I hope that the Minister will concede that our amendment would fill a gap in the consultation proposals. Like the noble Lord, Lord Teverson, I hope that she does not just bat it away.
I am grateful to the noble Lord, Lord Lansley, for his amendments. As he said, we need mechanisms to address what happens when things go wrong, and he made a good stab at doing that. He made the useful proposal that an independent review could be sought when conflicts over policies and their application arose. I hope that the Minister agrees that those proposals have some merit. The noble Lord’s other amendments touch on the extent to which representatives of the UK fishing fleet should be consulted. Again, that is important. We agree with the proposal but, as in our amendment, would want any consultation extended to a wider group of stakeholders.
The amendments in the name of the noble Lord, Lord Teverson, relate to the timescale for the review of joint fisheries statements. He proposed a more meaningful review period of five years rather than six. We agree that there is little logic in the six-year timescale. Given that it is assumed that international negotiations will continue to take place annually, it seems far more practical to review and update the joint fisheries statements in a more timely way in line with changes taking place scientifically and the negotiations with the international community. As he said, five years is consistent also with the parliamentary cycle, so there seems to be not much logic for six and a whole lot more logic for five. I hope that the Minister is able to take that on board.
The noble Duke, the Duke of Montrose, seeks via his amendments to build more flexibility into the production of joint fisheries statements. He may have a point, although I doubt that there would be many occasions where there would not be some need for a review every five or—if necessary—six years.
At the heart of these amendments is a need for proper statutory consultation, meaningful timeframes, the best advice and flexibility. I hope that the Minister will see the sense in the proposals and perhaps take some on board.
My Lords, I congratulate your Lordships on getting through a daunting-looking group of amendments in record time. Your points have been made well and succinctly.
Any Secretary of State fisheries statement, or SSFS, would cover only reserved and UK quota matters and would be published only if such matters were not covered in the joint fisheries statement. It is our intention that the joint fisheries statement will be the vehicle which sets out the fisheries administrations’ future fisheries management policies, respecting the devolved nature of fisheries but recognising the benefits of a joined-up approach.
My noble friend Lord Lansley’s Amendment 36 relates to a process to resolve disagreements through an independent review. While I appreciate the sentiment behind making provision for disagreements over policy between fisheries policy authorities to be dealt with amicably, it is unclear exactly how he is interpreting the expression
“a statement under this Act”.
Sadly, I am advised that the amendment would create legal uncertainty.
In respecting the devolution settlements, the provision for a JFS allows for the fisheries policy authorities to set out individual policies alongside those agreed jointly. This means that an authority could publish its own policies if they would contravene its wider policies as part of the statement. Therefore, given that the statement requires administrations to set out their policies, it is hard to envisage how they could then claim that the statement was incompatible with those very policies. If the amendment related to the SSFS, the Bill is clear that this can contain only reserved or UK quota matters, so it would be inappropriate for other fisheries authorities to be able to block a decision by the UK Government in this case. The amendment also seems to allow for a review to be invoked at any time after a SSFS or JFS is finalised, potentially leading to uncertainty around the state of those documents after they are in force.
The review process could also cause problems for the fisheries policy authorities in complying with what the Bill sets out as their legal duty to produce a joint fisheries statement, because it would appear to undermine the statutory framework for co-operation that we are seeking to build, by consent, with the devolved Administrations. I appreciate the concerns that my noble friend seeks to address through the amendment, but perhaps I can provide further reassurance to him by saying that other, non-legislative elements of the framework will be set out in a memorandum of understanding which is being developed with the devolved Administrations. This will enshrine co-operative ways of working and a mechanism for escalating and resolving disputes, were they to arise. Existing governance structures and agreements such as the overarching MOU on devolution between UKG and the devolved authorities, which sets out the JMC process for managing intergovernmental disputes, will also continue to apply.
I turn to Amendment 37, tabled by the noble Lord, Lord Teverson. Schedule 1 states that in consulting on a draft, there is a requirement for the fisheries policy authorities to act jointly. Paragraph 4 of that schedule ensures that the fisheries policy authorities, acting jointly, must publish the JFS as soon as is reasonably practicable. I hope this makes clear to the noble Lord that the JFS is a joint endeavour.
I will address the amendment to reduce the period between reviews of the JFS from six years to five years together with similar amendments relating to the SSFS, as the logic behind the decision for a six-yearly fisheries statement cycle applies to both statements. We believe a six-year period to be sufficiently regular to ensure that both statements are up to date with the current state of fisheries management and best available scientific advice, while providing enough stability and management to enable results to become apparent. The six-year period also reflects the practice of reviewing marine plans as set out under the Marine and Coastal Access Act 2009. I am reliably informed by my noble friend that this is a Bill which the noble Baroness, Lady Jones of Whitchurch, was rather proud of. It also allows reviews to be scrutinised by all the relevant legislatures, thereby ensuring that the priorities of the legislatures of the day can be reflected, as the JFS will need to be scrutinised by all four legislatures, including those in the devolved Administrations which operate on different electoral cycles. It seems prudent to allow a little more time between reviews. Also, the six-year period is a maximum time allowed between reviews. If appropriate, a statement could be reviewed earlier.
In addition, the Bill now commits the fisheries policy authorities to report every three years on progress against these objectives. This increases transparency and accountability further. As Clause 3 allows for the statement to be amended as the need arises and Clause 11 provides for a three-year reporting period, I hope that the Committee will agree that we will be able to respond quickly to changing circumstances and environmental needs as required, ensuring that the policies in our statements remain fit for purpose.
I am grateful to my noble friend Lord Selkirk and the noble Baroness, Lady Bakewell, for speaking to the amendments by the noble Duke, the Duke of Montrose, seeking to require fisheries policy authorities to publish an explanation of their reasons if they choose not to amend the joint fisheries statement following a review.
I fully support the need for transparency around reviews of the statement. However, Clause 3 and Schedule 1 require a statement to be reviewed at least every six years and progress against the objectives to be reported on at least every three years to ensure that the policies remain fit for purpose. The fisheries policy authorities will consult on any changes to the JFS, any SSFS and any fisheries management plans.
Fisheries management needs to be adaptive due to the dynamic nature of the environment. It is therefore extremely unlikely that the JFS, which will include policies for all the fisheries policy authorities, will not require changes. That is why this clause allows the statement to be amended as need arises in accordance with processes outlined in Schedule 1.
Amendment 41 seeks to ensure as much clarity as possible on the policies of the UK as set out in the two fisheries statements. I agree that anyone reviewing the fisheries statements should be able to review the documents with ease. However, it is important to recognise that the documents serve different purposes in that they deal with devolved and non-devolved matters. They are therefore subject to different preparation and scrutiny requirements. It is therefore important that the two statements remain legally distinct from one another. I am happy to commit that if both statements are published, each will be referenced on the relevant website to make it clear that the two are linked.
I shall address Amendments 66 and 68 together. These amendments afford me the opportunity to provide clarity on the consultation process for both statements. My noble friend raised concerns at Second Reading that the consultation process needs to balance a range of interests and that consultation may not go beyond publishing the documents online. We have begun engaging informally with stakeholders and will continue to do so. A full public consultation will also take place on these statements.
Schedule 1 ensures that a consultation draft must be brought to the attention of interested parties, including members of the public, and that the final text must have regard for any representations made. Both documents will also go before legislative assemblies of all four fisheries administrations.
Paragraph 2(1) sets out that the consultation drafts must be brought to the attention of interested persons. This is broadly defined to recognise that there will be a wide range of views which must be taken on board. We have taken legal advice which confirms that there is no need to specify groups already within the scope of this definition. I also wish to reassure my noble friend about the process of consultation. It is true that drafts of consultation will be made available online, but wider engagement will also take place. Indeed, the Government and devolved Administrations have already begun conversations with a range of stakeholders about the joint fisheries statements. The statements are also subject to parliamentary scrutiny, and it is right that during this process, not only are the statements themselves scrutinised, but the right level of engagement is carried out to ensure the statements have been brought to the attention of interested parties.
Legislative scrutiny is the area that my noble friend the Duke of Montrose, the noble Lord, Lord Teverson, and my noble friend Lady McIntosh sought to explore in Amendments 67 and 69 respectively. I am supportive of the principle underlying my noble friend’s amendment to allow Parliament sufficient time to examine a draft of the JFS and a similar ambition in relation to the SSFS. There is precedent for not specifying a minimum period for parliamentary consultation in a Bill; notably, in the Marine and Coastal Access Act 2009. Your Lordships can be assured that discussions with the House authorities and a relevant Select Committee on the appropriate time needed for consultation will take place and the department will ensure that an appropriate amount of time is given for scrutiny.
The date of the adoption of the JFS of 18 months after the Bill passes will ensure that enough time is given to scrutinise the draft statement, both by the public through robust consultation and by members of each UK legislature. The date of the adoption of the SSFS, if one is required to be published, will be no longer than six months after the adoption of the JFS, again allowing time for appropriate scrutiny.
In relation specifically to my noble friend’s amendment, as the JFS will also be scrutinised by the appropriate legislatures in Scotland, Wales and Northern Ireland, it is not appropriate for the UK Government to specify how each Administration undertake scrutiny, as this would cut through the internal processes of the devolved legislatures.
Turning to Amendment 70, I reassure noble Lords that the fisheries administrations have regular and routine engagement with stakeholder groups across the UK. Such engagement will continue so that stakeholders will be able to contribute to the development of fisheries management plans and to their implementation. The Government do not consider it necessary to set up statutory local advisory boards. Again, I highlight that Schedule 1 to the Bill already requires fisheries authorities to consult with interested persons.
Amendment 74 in the name of the noble Baroness, Lady Jones of Whitchurch, seeks to widen the consultation process when developing the progress report for the SSFS. The Bill refers to consulting with the devolved Administrations on the development of the report because the SSFS may contain additional policies relating to the reserved and UK quota matters necessary to delivering those fisheries objectives. As the report may cover progress against policies of relevance to the devolved Administrations, we consider it appropriate to consult them specifically. It is important to note that the report will subsequently be published and available widely. It will also be laid before Parliament.
While we will always seek to consult stakeholders where appropriate in implementing policies set out in the SSFS—or, for that matter, the JFS—a statutory duty to consult on the interim review is disproportionate and would create an unnecessary burden. Instead, we believe that the requirement for a formal consultation, when the statements are fully reviewed at least once every six years, is sufficient. With this explanation, I hope my noble friend will feel able to withdraw his amendment.
I did not understand the Minister’s response on my Amendment 37. I am specifically trying to understand how the joint fisheries statement is triggered. Forgive me, I may have misheard the Minister, but can it be triggered by any one of the authorities or does it have to be unanimously triggered by them? It is not specified, and that obviously makes a big difference to when replacements might be demanded or when they might happen. Clause 3(1) does not say how those are triggered, just that they can be at any time. It is by one, two, three or four of the devolved authorities?
There was a part of the speech that got cut, which I think may provide some elucidation on this point. The JFS is a joint endeavour; all fisheries policy authorities must work together throughout the drafting processes, publication, and review and replacement of the statements. All authorities must agree to go consultation and to publish. I hope that answers the noble Lord.
So, to clarify, there has to be unanimous agreement between all authorities for a replacement policy to be a triggered?
I am grateful to my noble friend. There were 14 amendments in this group, so it was not easy to tackle them all, not least since we managed to introduce them all in 18 minutes—it did not leave a lot of time for the preparation of notes on amendments. I am also grateful to the noble Lord, Lord Teverson, because the point he just made in his further intervention illustrated forcefully the point I was making. This is all absolutely fine if everybody agrees; it is when they do not agree that we want the legislation to tell us what happens. I do not think it does that yet.
My noble friend has explained that there will be a memorandum of understanding and, as we have heard, there is the 2012 concordat relating to licence conditions and how the economic link requirement is implemented and so on. I do not dispute that non-legislative means may well deliver the co-ordination between the fisheries policy authorities that is required, but it is not transparent to us now; nor is it transparent yet to the industry. That is why the National Federation of Fishermen’s Organisations asked, quite properly, the questions and illustrated how problems could arise; for example, on the implementation of the equal access objective.
My noble friend quite rightly challenged my drafting, but we can deal with that if we need to. It could perhaps be “statements under this Section” and not “under this Act”; we can deal with that very easily. If necessary, we can make it very clear that the independent reviewer could be resorted to by any of the fisheries policy authorities before the point at which the joint fisheries statement is made—that is just to clarify; I thought it was clear but it clearly was not. We can deal with the drafting.
The issue that we come back to is: what happens when they do not agree? I am afraid that my noble friend lapsed straight into the problem that I think we are trying to avoid, which is that the fisheries policy authorities that have devolved responsibilities will set out their policies and the Secretary of State will set out policies on reserved matters in the Secretary of State fisheries statement. As I think the noble Lord, Lord Teverson, made perfectly clear, we want and the industry needs—and it will clearly be better—all the policies to be set out in the joint fisheries statement. They can be; there is absolutely nothing in the Bill that requires the Secretary of State to publish a Secretary of State fisheries statement on reserved matters. The Secretary of State can put it all into the JFS. It would be better if it were all in the JFS, but it will all get into the JFS only if there is agreement between all the authorities to this effect. But that is pretty important: remember that the reserved matters in this context include quota functions—the catch quota and effort quota—which could, in certain circumstances, completely override what might otherwise be the licensing of fishing boats by devolved authorities. If we can get it all into the JFS, it would be a better outcome.
I will happily beg leave to withdraw the amendment, but I do not think that we have concluded this conversation. We need to keep this conversation going, and I hope that my noble friend will make it clear that we will—she does not need to go back to the Dispatch Box. On that basis, I beg leave to withdraw my amendment.
Amendment 36 withdrawn.
Clause 2 agreed.
Clause 3: Joint fisheries statement: procedure
Amendments 37 to 40 not moved.
Clause 3 agreed.
Clause 4: Secretary of State fisheries statement
Amendments 41 and 42 not moved.
Clause 4 agreed.
Clause 5: Secretary of State fisheries statement: procedure
Amendments 43 and 44 not moved.
Clause 5 agreed.
Clause 6: Fisheries management plans: duty to comply with proposals in JFS
Amendments 45 to 58 not moved.
House resumed. Committee to begin again not before 8.46 pm.