Motion 22A (as an amendment to the Motion on Amendment 22)

Fisheries Bill [HL] - Commons Amendments – in the House of Lords at 4:00 pm on 12th November 2020.

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Lord Beith:

Moved by Lord Beith

Leave out “agree” and insert “disagree”.

Photo of Lord Beith Lord Beith Liberal Democrat

I am grateful to the Minister for his careful explanation, and for dwelling on some of the constitutional aspects of the matter, but I am still moving Motion 22A, in my name, that this House disagrees with Commons Amendment 22, introducing, as it does, a power for Ministers to apply sections of the Fisheries Bill to the Channel Islands and the Isle of Man without their consent.

It came as an unpleasant surprise when the new clause appeared at such a late stage in the Bill’s progress. As the Minister indicated, my interest in such matters dates from work I did on the 2010 and 2014 Justice Committee reports on the Crown dependencies, which analysed, assessed and promoted the modern relationship between the UK and the dependencies. In every relevant respect, that 2010 report was accepted by the Government of the day.

The report set out a relationship that respected the legislative autonomy of the dependencies, which would not normally be the subject of Westminster legislation unless they wished to be. Along with that went a policy of increasing entrustment, enabling the dependencies to develop their relations with the wider world, including, in the case of the Channel Islands, their very close neighbours in France.

The UK, of which the Crown dependencies are not, and never have been, a part, remains responsible for international treaty obligations of the dependencies. The framework agreements were put in to ensure that this could be done effectively, while respecting their autonomy. I shall quote from the Guernsey agreement of 2006, but the other dependencies have similar agreements. Paragraph 13 of that agreement says:

“Guernsey has an international identity which is different from that of the UK.”

The agreement continues:

“The UK recognises that Guernsey is a long-standing, small democracy and supports the principle of Guernsey further developing its international identity … The UK has a role to play in assisting the development of Guernsey’s international identity. The role is one of support not interference … Guernsey and the UK commit themselves to open, effective and meaningful dialogue with each other on any issue that may come to affect the constitutional relationship … International identity is developed effectively through meeting international standards and obligations which are important components of Guernsey’s international identity … The UK will clearly identify its priorities for delivery of its international obligations and agreements so that these are understood, and can be taken into account by Guernsey developing its own position.”

A key question for the Minister is: do the present UK Government stand by that agreement? The clause suggests otherwise. It represents a threat to impose Westminster legislation when there are adequate means available to resolve differences when they arise. The best way is bilateral discussion, in which the UK is clearly in a strong position, given its size and resources. In any case, the islands themselves have a strong commitment to maintain their British identity, and their international reputation for good government and good faith.

Alongside all that is the requirement that island legislation requires Royal Assent, and therefore is considered at Privy Council level in the UK. That is a mechanism by which the UK seeks to make sure that international obligations are satisfied. The processes have worked, and they have resolved issues. I am not aware of any significant outstanding issues that the process has not coped with.

However, the clause says, “We’re not sure we can trust you, and if we think it’s necessary we will, without your consent, legislate from Westminster to override your legislative jurisdiction.” The Government may say—indeed, they have said, and they are saying it again today—that this is extremely unlikely, but the possibility has already been noticed by the French media, and that could undermine the Bailiwick of Guernsey, or Jersey, in their discussions with their close neighbours.

The Minister quoted the Constitution Committee. Its report, which is critical of the clause, states:

“We are not persuaded of the necessity of Commons amendment 22.”

The Minister’s letter said that the Government

“do not currently have any specific concerns which we would envisage using”,

the clause to address. The committee then stated in response that the Government,

“should seek powers only when they are necessary and their use is anticipated.”

The Minister also quoted that. The Committee in paragraph 9 states that the Commons amendment,

“undermines the domestic autonomy of the Crown Dependencies and is contrary to long-standing practice.”

We are left with a clause that the Government say they have no plans to use but hold as a threat. That reverses the trend towards greater recognition of the dependencies’ autonomy and entrustment in their international relations.

My final questions are these: is there intended to be a change of constitutional policy towards the Crown dependencies such that a power to extend Westminster legislation without consent will become a feature in more UK legislation and, if so, why are the Government not more interested in a wider discussion of such a fundamental change in policy and the constitutional relationship? Or have they stumbled into an unnecessary row because someone somewhere in Defra, who has always wanted the department to have that power, got it out of the drawer and into this legislation? I have a strong suspicion the latter might be the reason.

I note the Government’s proposal for a mechanism for discussions in the context of marine management with the dependencies. Welcome though they might be, they do not make any difference to the fundamental constitutional issue. The Government surely have enough problems to tackle without picking an unnecessary quarrel with our loyal friends in the Channel Islands. I know that the Minister who is responding today, the noble Lord, Lord Gardiner, is not one for picking quarrels. He should see what he can do to bring this quarrel to an end.

Photo of Lord Lexden Lord Lexden Deputy Chairman of Committees, Deputy Speaker (Lords)

The following Members in the Chamber have indicated that they wish to speak: the noble Lords, Lord Anderson of Ipswich and Lord Faulkner of Worcester, the noble Baroness, Lady Couttie, and the noble Lords, Lord Northbrook and Lord Pannick. I will call them in order.

Photo of Lord Anderson of Ipswich Lord Anderson of Ipswich Crossbench

As a serving member of the Courts of Appeal of Guernsey and of Jersey, I do not normally speak on Channel Islands matters, at least if there is any possibility that it might disqualify me from sitting on some future appeal. This permissive extent clause, most unusually not consented to by either Guernsey or Jersey, merits a departure from that general rule.

There is no need to speculate as to why the Government insist so strongly at this time on a power to implement international fisheries agreements in the Channel Islands. The Minister has, after all, told the Constitution Committee that,

“we do not currently have any specific concerns which we would envisage using the PEC to address.”

I accept that formulation, while noting the care with which it is drafted. I shall, however, speak as someone with a little understanding of the legal systems of the Channel Islands on the constitutional consequences that are feared in the islands were this clause, said by the Minister to support the Crown dependencies, to be activated.

There was no hint in what we heard from the Minister that Orders in Council issued under the clause would be anything other than automatically binding in the Channel Islands. The point I want to get across is that under the laws of Jersey and Guernsey, it is at least doubtful that such a clause would even allow the United Kingdom Government to legislate in future for the bailiwicks without their consent. The States of Jersey Law 2005, like the Code of 1771 that preceded it, assumes that the UK Parliament may legislate for Jersey but places an important fetter on that power. Discussed by the Royal Court in the terrorist asset-freezing case of 2011, Section 31 of that law appears to signify that any Order in Council to extend the provisions of the Fisheries Bill to Jersey would need to be approved by Jersey’s legislature, the States Assembly, before it could be registered.

The States of Deliberation has a similar function in Guernsey under Article 72A of the Reform (Guernsey) Law 1948, as amended. Does the Minister accept that an Order in Council providing for the implementation of international obligations in the Channel Islands could take effect there only with the consent of the States Assembly and the States of Deliberation? If he cannot agree—I suspect that his instructions may be that he cannot—we enter into dangerous and heavily disputed waters.

The consent or otherwise of devolved Administrations within the United Kingdom is much in your Lordships’ minds at the moment, as we consider the internal market Bill. However, the constitutional issues for the Channel Islands are starker than that. Unlike Scotland, Wales and Northern Ireland, they are not part of the United Kingdom, not represented in this Parliament and benefit from no equivalent to the protection for devolved Administrations in Clauses 41 and 42. Were the legislators in Guernsey or Jersey to resolve that an Order in Council under this clause should not be approved, we would find ourselves in a constitutional impasse. The confusion and ill feeling that could be engendered in the fishing communities of the Channel Islands and of Normandy, uncertain of the rules to which they were subject, would benefit no one, save the lawyers who might be expected to rely not only on the points that I have outlined but on the right to electoral representation that the Gibraltarian Ms Matthews successfully asserted in her case against the United Kingdom. That was one of my many defeats in the European Court of Human Rights.

It is genuinely puzzling that there seems to be no compelling reason to have precipitated such a potentially damaging conflict. For many years, as the Minister acknowledged, Guernsey and Jersey have found ways of scrupulously giving effect to their international obligations while preserving their constitutional autonomy. By threatening that autonomy for no specific reason this clause sows discord where there was, constitutionally if not always politically, harmony. I regret that we are asked to accept it and that the request has come so late in the parliamentary process. I thank the noble Lord, Lord Beith, for his amendment, which has allowed these important issues at least to be aired.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Deputy Chairman of Committees, Deputy Speaker (Lords) 4:15 pm, 12th November 2020

My Lords, it a privilege to follow the noble Lord, Lord Anderson of Ipswich, and, like him, I declare a Channel Island interest in that I chair the Alderney Gambling Control Commission and am a vice-chair of the Channel Islands All-Party Parliamentary Group. To say that the inclusion of the permissive extent clause in Clause 52 has upset the bailiwicks of Guernsey and Jersey is an under- statement. They are affronted by it, and for very good reason. The clause is neither necessary nor appropriate; it respects neither the bailiwicks’ legislative autonomy nor their centuries-old constitutional relationship with the Crown. This is almost exactly the view taken by your Lordships’ Constitution Committee, to which the noble Lord, Lord Beith, referred.

I shall quote another section of that report, which states:

“The long-standing practice of the United Kingdom when it ratifies an international agreement has been to do so on behalf of the United Kingdom of Great Britain and Northern Ireland and any of the Crown Dependencies that wish the international instrument to apply to them. Where legislation has been required, it has been enacted by the Crown Dependencies’ own legislatures, subject to the usual requirements for Royal Assent, and any potential differences of view have been dealt with in bilateral discussion rather than by the imposition of legislation from Westminster.”

The report goes on to state:

“We recommend that the Bill be amended so that consent of the governments of the Channel Islands and the Isle of Man (as appropriate) is required prior to the use of these powers.”

The crucial word here is “consent”.

Reading the Hansard report of the Bill’s Report stage in the House of Commons, I commend the speech of Sir Robert Neill MP, the chairman of the Justice Committee:

“There is a long-standing constitutional convention … that the normal process is that we legislate for the Crown dependencies only with their consent. They are not former colonies or British territories, and they are not part of the United Kingdom in the strict sense. They are possessions of Her Majesty the Queen, by right of her position as successor to the Duchy of Normandy. That is why they do not have representation here. Where necessary, their legislative dealings with the UK Government are dealt with historically through the Privy Council, and are now safeguarded by the Ministry of Justice via the person of the Lord Chancellor. So their constitutional position is different.

The Government have recognised that in the past, for example in tax transparency legislation, where this House accepted that although we have the power to legislate for overseas territories, we do not constitutionally have the power to legislate for the Crown dependencies in a like manner.”—[Official Report, Commons, 13/10/20; cols. 307-08.]

It is almost exactly one month since this government amendment was first considered. The Bill started in your Lordships’ House on 29 January. It received our normal thorough scrutiny, with four days in Committee in March and two on Report in June. Throughout all those stages, and indeed during the Commons consideration at Second Reading and in Committee, there was no reference to this new clause.

The Minister said that the Government would have preferred to introduce the new clause earlier with the consent of the Crown dependencies, and indeed there were discussions between Defra officials and the bailiwicks of Guernsey and Jersey in July, after the Bill had left your Lordships’ House, about the inclusion of a PEC. The island Governments, however, made it clear, verbally and in writing, that they did not want a PEC included; in other words, they denied their consent to it, pointing out that the bailiwicks are responsible for ensuring that they fulfil all the international obligations to which they have agreed to be bound, including by making legislation themselves in their respective jurisdictions.

The islands meet these international obligations by implementing appropriate policies and making and enforcing relevant legislation. The Channel Islands can legislate very quickly, if needed, to comply with international obligations and to resolve any international situations, as they have in the past. Any issues that arose could be dealt with effectively by the islands themselves, and the PEC is therefore unnecessary, and, from a constitutional point of view, wholly undesirable.

At this stage, I draw the House’s attention to the views of my noble friend Lady Pitkeathley, who is the only Guernsey-born Member of your Lordships’ House. She cannot take part in this debate but she has sent me this note:

“I was planning to focus on the issue of trust. Trust which has always existed … between the Channel Islands and what is affectionately known as ‘The Mainland’ or ‘The Other Side’. Every islander has relatives, friends, connections ‘over the other side’ and it is almost taken for granted that the interests of the two jurisdictions coincide, even while recognising and being proud of their own distinctions. It will be a source of great distress that this trust should be undermined as this legislation threatens to do and is surely not in the long term interests of either my home island or those of the government. The relationship between Guernsey and the UK government is based on mutual respect and an understanding of different perspectives and for the government to make these changes without any communication, let alone consultation, shows a gross lack of respect for the constitutional relationships which have worked well for decades. This is a constitutional issue, not one confined to fishing and would set a most unhelpful precedent for future relationships between ‘our dear Channel Islands’ and the UK.”

As I am sure your Lordships will be aware, “our dear Channel Islands” was how Winston Churchill described them in his liberation broadcast on 8 May 1945.

I do not want to be unfair to the Minister, or indeed to the Fisheries Minister, Victoria Prentis, as in recent days they have attempted to persuade Ministers in Guernsey and Jersey that what they are attempting to do is fair and reasonable. I should express my own appreciation that they took the trouble to talk to me last Tuesday.

I heard from Victoria Prentis’s office on Tuesday this week that Defra will

“establish a committee to discuss the Crown dependencies’ international obligations”.

We heard a similar commitment from the noble Lord, Lord Gardiner, this afternoon. That would be a tiny step forward, but it does not alleviate the Channel Islands’ concerns and would not justify the inclusion of the PEC in the Bill. In his letter to the Constitution Committee on 2 November, the noble Lord, Lord Gardiner, gave his

“absolute assurance that it is still government policy that legislation should not be extended to the Crown dependencies without first consulting their Governments and seeking their consent.”

When he replies to this debate, can he clarify that absolute assurance: that, in consulting the bailiwicks, the Government would act only once they had not just sought but received their consent, and that that is not just government policy but long-standing, established constitutional principle and practice? If he accepted that, he would at least be following the recommendation of our own Constitution Committee. If he does not do that, I really cannot see any alternative other than to agree to the amendment in the name of the noble Lord, Lord Beith.

Photo of Baroness Couttie Baroness Couttie Conservative

It is a great pleasure to follow the noble Lord, Lord Faulkner, whose speech I entirely agree with. In the interests of brevity, I will not reiterate some of the points that he has made.

I begin by reminding the House of my interest as a Guernsey financial services commissioner. I am speaking today to support the amendment in the name of the noble Lord, Lord Beith.

The effect of Clause 52 is to require the Channel Islands to follow the law as it pertains to regulations within international fishing agreements that the UK signs with or without the islands’ consent. The Channel Islands are independent, sovereign states that can create their own laws without interference from the UK. Although it is true that the UK represents the Channel Islands on the international stage, and is therefore responsible for ensuring that they follow the international law that the UK signs up to, the Channel Islands believe that this relates only to areas such as defence, human rights and foreign policy, and that fishing in their own domestic waters is a domestic matter and therefore does not fall under this obligation.

The PEC created in this amendment also raises some broader sovereignty issues that other speakers have touched upon and the concern that the UK could, at some time in the future, seek to further undermine their independence. They fear for where this may lead. I would be grateful if my noble friend the Minister could confirm in his reply that that will not be the case.

I am grateful to my noble friend the Minister and to the Fisheries Minister in the other place for their time discussing this matter with me and for the progress we have made towards a level of compromise that, while not satisfying the Channel Island legislatures, mitigates to some degree what they see as an infringement on their sovereignty.

My noble friend the Minister agreed at our meeting that regulations that the Channel Islands are required to implement will be subject to consultation by the committees spoken about by the noble Lord, Lord Faulkner, with the Channel Islands legislatures, and that all reasonable steps will be taken to respond to and mitigate the concerns that the consultation raises. I would be very grateful if the Minister could confirm that.

He also agreed that, in so far as the UK enters into international fishing agreements that contain regulations that are not relevant or appropriate to the Channel Islands, they will not apply. This situation could arise when developing regulations associated with fishing agreements signed with countries located some distance away from the Channel Islands, such as Norway and Iceland, and this can be achieved because of the regional structure of the plans to manage the fishing industry and trade in the UK, post Brexit. Again, I would be grateful if, in his closing remarks, my noble friend the Minister could confirm my understanding.

The Channel Islands and the UK have long enjoyed a constructive and positive working relationship, which I am sure we all hope will continue. It is unfortunate that the UK Government felt the need to include their amendment in the Bill and that they did not feel that the usual channels of communication, which have worked for so long, could be used instead to ensure that both the UK and the Channel Islands abide by their international obligations. It is doubly unfortunate that this issue has arisen around fisheries—an industry that, although not large on the Channel Islands, is nevertheless a vital part of the islands’ culture. I very much hope that the compromise I have outlined today is accepted.

Photo of Lord Northbrook Lord Northbrook Conservative 4:30 pm, 12th November 2020

My Lords, I support the amendment in the name of the noble Lord, Lord Beith, and the powerful speeches by the noble Lords, Lord Anderson of Ipswich and Lord Faulkner of Worcester, and my noble friend Baroness Couttie.

The relationship between the UK and the Channel Islands respects the distinct laws and ancient customs of the islands. They are not represented in the UK Parliament, and by charter and advention, the UK Parliament does not legislate for the islands without their consent. It is settled practice that the UK Government consult the main Channel Islands before they may bind them to obligations in international law.

As the noble Lord, Lord Beith, has already stated, the Fisheries Bill was amended at a late stage in the other place to include a permissive extent clause, or PEC. As other noble Lords have said, the PEC seeks to enable the UK Government to extend, through an Order in Council, certain provisions of the Bill to the Crown dependencies. As the Minister stated, this is largely related to the fulfilment of international obligations in Crown dependency waters. The use of PECs in relation to the Crown dependencies is extremely rare and fundamentally based on the established principle of prior consent. In this instance, both Guernsey and Jersey have consistently made absolutely plain to the UK Government the islands’ position towards the PEC as an unnecessary, unwanted and disproportionate measure.

The PEC offers neither a precise object nor a defined timescale for its scope and application. Furthermore, it does not contain any consultation provisions prior to its potential application. However, I welcome the words of the Minister about the committee that may be established.

In its present state the PEC is open-ended and overreached by the UK Government into an area where the main islands’ legislative frameworks are considered competent. In addition, the islands have stated that the UK’s effort to meaningfully consult—including through the fisheries management agreement—are belated and do not represent a solution to the PEC issue.

The Government still plan to go ahead with the use of the PEC unilaterally, and would use other consultative channels, such as the FMA, only as a supplementary method of engaging the Crown dependencies. I am briefed that both Guernsey and Jersey fundamentally disagree with the premise behind this and continue to oppose the PEC in the strongest terms. I am very supportive of them in this.

I will not repeat in detail the comments of other noble Lords on the report by the Constitution Committee of 9 November, except to say this. At paragraph 4, it states:

“The governments of the Channel Islands have expressed concerns about the ‘Permissive Extent Clause’ … We draw the attention of the House to the constitutional implications of this new subsection.”

At paragraph 7, it states:

“We are not persuaded of the necessity of Commons amendment 22. The Government should seek powers only when they are necessary and their use is anticipated.”

Finally, paragraph 9 of the report states that:

“Commons amendment 22 undermines the domestic autonomy of the Crown Dependencies and is contrary to long-standing practice. We recommend that the Bill be amended so that consent of the governments of the Channel Islands and the Isle of Man (as appropriate) is required prior to the use of these powers.”

By passing this amendment, the Government are going against the unanimous view of this House’s Constitution Committee. That is a serious matter and one that I regret.

The Government state that the Isle of Man has agreed to this amendment. I would like to point out the legal system there is Manx customary law, a form of common law. The relationship between the Crown and the Channel Islands respects the distinct laws and ancient customs of the islands, which are rooted in Norman-French customary law—an important difference, on which perhaps the noble Lord, Lord Pannick, might be able to elaborate. As a non-lawyer, I find this a perfect valid reason for their different view.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, I agree with the speech of the noble Lord, Lord Beith, and other speeches which have been highly critical—justifiably so—of Commons Amendment 22. Like the noble Lord, Lord Beith, I am a member of the Constitution Committee. As noble Lords have heard, we reported on 9 November that Amendment 22 raises issues of constitutional importance. It is the long-standing practice of Parliament that it does not legislate for the Crown dependencies without their consent. As your Lordships have heard, Amendment 22 has caused considerable concern in the Channel Islands, and understandably so.

It is particularly regrettable that the Government introduced the permissive extent clause at so late a stage of the passage of this Bill through Parliament. The amendment was tabled on 9 October, four days prior to Report and Third Reading stages in the House of Commons. The Bill had its First Reading in this House as long ago as 29 January. The 11th-hour tabling of the new provision has deprived this House of any opportunity to debate this amendment prior to today. It gave the House of Commons very little opportunity to consider the amendment. On a matter of constitutional importance, that is inexcusable.

It is particularly inexcusable when the hybrid procedures of this House prevent noble Lords, with very limited exceptions, participating remotely at this stage of a Bill. It means that those noble Lords who are unable to travel here to protect their health are simply deprived of a voice. On 12 October, when the Senior Deputy Speaker introduced the report explaining the hybrid procedure for Lords consideration of Commons Amendments, the noble Lord said by way of justification for limiting remote participation at this stage:

“By the time a Bill reaches these late stages, the issues have already been well debated”.—[Official Report, 12/10/20; col. 880.]

On this important provision, they have not been. That is another reason it is simply inexcusable for the Government to introduce a matter of constitutional importance so late in the Bill. I suggest that the Procedure Committee reconsider the hybrid procedure on ping-pong—the procedure that prevents remote participation apart from for a person moving a Motion—when, as in this case, a provision has not been previously considered by the House.

That would all be bad enough, but the introduction of a provision of constitutional importance so late in the passage of the Bill is especially objectionable when the Government do not even suggest that there is any urgent need to act on the powers they now wish the House to confer on them. On the contrary, the Minister was clear this afternoon, and in correspondence, that it was “highly unlikely” that these powers would ever be exercised.

The Minister was equally candid in his letter to the esteemed chair of the Constitution Committee, the noble Baroness, Lady Taylor of Bolton. He said—it has already been quoted but it is so extraordinary that it bears repetition:

“To be clear, we do not currently have any specific concerns which we would envisage using the PEC to address.”

Moreover, in that same letter, the Minister assured the committee he accepted that

“the Crown Dependencies take their international obligations extremely seriously; and I am confident that they would meet any required commitments, legislating domestically if required, in any normal circumstances.”

The position is clear. Even the Government do not suggest that there is any current or anticipated need for this extraordinary provision. They would simply like to have the powers in case something unexpected were to turn up.

When the provision was debated in the House of Commons, Sir Robert Neill, chairman of the Justice Committee, accurately described it as a

“‘break glass in emergency’ clause”,

and simply not good enough to justify what he described as

“trespassing on the constitutional integrity of the Crown dependencies”.—[Official Report, Commons, 13/10/20; col. 308.]

I agree, except that I would say “trampling all over”, rather than “trespassing on”. We should not break constitutional conventions because there is a remote possibility of a need to exercise powers in the future. Far less should we be doing so by way of a provision introduced so late in the passage of a Bill that it has not received the detailed consideration which it deserves.

Commons Amendment 22 is indefensible, except on the basis that any legislation for Jersey and Guernsey without the consent of the Channel Islands would have no legal effect there, for the reasons given by the noble Lord, Lord Anderson of Ipswich. I look forward to being briefed to argue the point before Mr Justice Anderson in the courts of appeal in Jersey and Guernsey, but for the obvious conflicts of interests that we would both have.

Photo of Lord Lexden Lord Lexden Deputy Chairman of Committees, Deputy Speaker (Lords)

Does any other noble Lord in the Chamber wish to speak? No. In which case, I turn to those listed for the debate and call the noble Baroness, Lady Bakewell of Hardington Mandeville.

Photo of Baroness Bakewell of Hardington Mandeville Baroness Bakewell of Hardington Mandeville Liberal Democrat Lords Spokesperson (Environment, Food and Rural Affairs)

My Lords, it is a pleasure to follow the noble Lord, Lord Pannick. Motion 22A, tabled by my noble friend Lord Beith, which would leave out Clause 52, deals with the PEC, or permissive extent clause, which affects the Crown dependencies in unusual circumstances and protects the UK against any part of it breaking international law, which would affect the whole of the UK. Other noble Lords have spoken very eloquently about this. My noble friend Lord Beith has set out extremely well the case for deleting Clause 52, and we have also heard from other noble Lords on this subject. It would seem extremely high-handed of the Government to introduce the PEC against the wishes of the Crown dependencies of Guernsey and Jersey.

The noble Lord, Lord Anderson of Ipswich, has spoken from his personal knowledge of the law of the bailiwicks of Jersey and Guernsey, and other Peers have also spoken knowledgeably to Motion 22A. The Bailiwick of Jersey has written to Peers stating that the use of the PEC in relation to the Crown dependencies is extremely rare and fundamentally based on the established principle of prior consent. In this instance, both Jersey and Guernsey have consistently made it plain to the UK Government the islands’ position that the PEC is an unnecessary, unwanted and disproportionate measure.

The Bailiwick of Jersey does not consider that the UK Government have yet put forward a credible argument as to why the PEC is necessary in Jersey’s case, and I very much agree. Jersey already possesses the ability, under the Sea Fisheries (Jersey) Law 1994, to give effect to any legal obligations related to fisheries management within its waters. The UK Government have not been able to provide any previous precedent or reasonable scenarios in which Jersey’s current regime could be considered insufficient.

In their letter to the noble Baroness, Lady Taylor of Bolton, on 2 November, the Government state that they have been trying to reach an agreement over the last 10 months. Not to have reached an agreement over this period is no excuse to impose the PEC on reluctant Crown dependencies.

The Channel Islands All-Party Group has also written expressing considerable concerns about this matter. My noble friend Lord Chidgey, who cannot be present this afternoon to make his own contribution, is similarly concerned about the legal implications of the UK imposing the PEC on Guernsey and Jersey.

I welcome the joint committee that the Minister, Victoria Prentis, is setting up with the Crown dependencies, to try to reach an agreement on the use of PEC. However, given the weight of the arguments expressed this afternoon, I ask the Minister to withdraw government Amendment 52 and continue negotiations with the Crown dependencies to reach an accommodation that is not in the form of a sledgehammer, as this Clause currently is. I look forward to his response on this critical issue, which has generated such a degree of opposition.

I pay tribute, as others have, to the Minister’s patience and good humour, and to the noble Baroness, Lady Bloomfield of Hinton Waldrist. They and their officials have provided very detailed briefings, which have been invaluable. I also pay tribute to my colleague, the noble Lord, Lord Teverson, for sharing his considerable expertise and knowledge, without which I would have struggled.

Photo of Baroness Jones of Whitchurch Baroness Jones of Whitchurch Shadow Spokesperson (Environment, Food and Rural Affairs) 4:45 pm, 12th November 2020

My Lords, I thank the Minister for his explanation of this new clause, and the noble Lord, Lord Beith, for raising his concerns, with which we have considerable sympathy. As ever, it is unfortunate that this issue has come before us at such a late stage. The noble Lord, Lord Pannick, raised some very important procedural issues around the consequences which arise from that, and the lack of scrutiny that we can therefore give to the proposals.

We have all read the exchange of correspondence with the Constitution Committee, and the Minister will know that its latest report says that it is

“not persuaded of the necessity” of the government amendment on the permissive extent clause, and that what is being proposed is “contrary to long-standing practice”, in which differences of view are

“dealt with in bilateral discussion rather than by … imposition … from Westminster.”

Clearly, the Constitution Committee speaks with great authority. We should take its advice seriously. It is a great shame that events have come to this, particularly since the circumstances in which the permissive extent clause would be used seem so obscure and unlikely. It feels as though the lawyers in Defra have got carried away anticipating events that are never going to happen, a point made by a number of noble Lords.

When we spoke to the Secretary of State and the Minister, Victoria Prentis, earlier this week, we were told that further discussions with the Channel Islands would take place this week, and that it was hoped that the outstanding issues would be resolved. We were optimistic. However, having spoken to Guernsey’s Minister of External Relations yesterday, and heard the voices from around the Chamber today, I gather that, despite further discussions, concerns remain. The Minister also told me that this was damaging relations with their French neighbours and playing badly in the French media, a point confirmed in the contribution of the noble Lord, Lord Beith. I agree with the quote from my noble friend Lady Pitkeathley, that this is an issue about trust, and that it is a great shame that the strong relationship and trust that have existed in the past are now being undermined.

I am sorry that we are debating this issue and that it remains unresolved. There must be further bilateral discussions to resolve the matter. At a minimum, I hope that the Minister will commit to continuing discussions with the Crown dependencies on this issue, not only in a committee, but on a more urgent basis. These matters surely must be resolved now, well in advance of any conflict, rather than potentially in the middle of any crisis which might provoke the use of a PEC.

Secondly, I hope the Minister can be explicit about the very narrow circumstances in which he envisages these powers being used, because that is a mystery to many of us. I think all noble Lords would like to understand the type of event that would provoke the imposition of a PEC.

Lastly, I hope the Minister can acknowledge the issue raised by the noble Lord, Lord Anderson, and others. The legal position is that, where an international instrument is to be applied to a Crown dependency, it will need to be enacted by the dependency’s own legislature rather than being imposed on it. If that is the case, then it needs the legislature’s consent in the first place, which rather negates the existence of a PEC.

I hope the Minister is hearing the voices from around the Chamber on all this. It is a great pity that we are ending our consideration of the Bill on such a note of discord. I hope he can come forward with a way through. As this is my last appearance on the Bill, I add my considerable thanks to the Minister and the noble Baroness for their considerable patience and courtesy throughout this process; they went much further than many in making sure that we were properly briefed and had access to the best possible advice. On that note, which I am sorry we have ended on, I hope the Minister is able to come back with something constructive. I look forward to his response.

Photo of Lord Lexden Lord Lexden Deputy Chairman of Committees, Deputy Speaker (Lords)

I call on the noble Lord, Lord Gardiner of Kimble, to reply to this important debate.

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

My Lords, this is an extremely important debate. I am grateful for this challenge; it is rather like playing tennis with someone much better than oneself, and one hopes that that raises one’s game. When lawyers are about, I get a shade nervous. I am also nervous as I am second to none in my regard and indeed affection for the noble Baroness, Lady Pitkeathley. I am reminded here of the reference to Winston Churchill and the reference to two of the Crown dependencies and their history with the Crown.

Not only for me personally but for the Government, the essential nature of working with the three Crown dependencies is the warmth and positivity of that relationship as we are all part of the British family. I say to the noble Lord, Lord Beith, that I am grateful to him for his opening remarks, because we stand by the framework agreements, recognising the Channel Islands’ international identities. That is different from the UK ensuring that we can meet our international obligations. This is an area where I, not being the Fisheries Minister but having to attend to this matter, have tried to get my head around how this clause comes into our international obligations and why I am going to endeavour to persuade your Lordships that this is solely about how it relates to the UK’s international obligations. Indeed, that is why it is in Clause 36; it is defined because it is about all of us adhering to obligations that, as I said in my opening remarks, play out for everyone in the British family. There is therefore that last resort, that safety valve, of having provisions that enable adherence to international obligations that would have adverse impacts.

To the remarks of my noble friend Lady Couttie, I say that our preference, indeed our expectation, is that the Crown dependencies will implement the necessary legislation to meet international requirements that apply to them. As I have said, the clause provides protection for the British family on the international stage, but obviously we hope we will not have to use it.

I was struck by what the noble Lord, Lord Pannick, said. My view is that, when I take out an insurance policy, I am dearly hoping that my house does not burn down but I have a backstop. I have given very lay consideration to the issue of responsibility in this new adventure as an independent marine state, given the international obligations that we as the British Government will have. I think it is rather important, when I am seeking to persuade, to say that I personally see merit in this, but we do not in any sense want to have difficulties with the Crown dependencies.

I hope noble Lords will appreciate the requirement for the UK Government to be able to ensure that they meet international obligations for the protection of all parts of the UK—and indeed the Crown dependencies, which is the crux of the matter. That is a responsible international-facing Government ensuring that we can continue to meet our international obligations on sustainable fishing. We will of course continue to work very closely with the Crown dependencies at all levels but of course particularly at official and ministerial level.

I say to a number of noble Lords, including my noble friends Lady Couttie and Lord Northbrook, the noble Lord, Lord Faulkner of Worcester, and the noble Baroness, Lady Jones of Whitchurch, that, having worked with my honourable friend Victoria Prentis, the Fisheries Minister, I am sure she is determined to ensure that, in the setting up of a committee with the Crown dependencies—as I have said, within the possible structure of the fisheries management agreements—to consider and assess how the implementation of the international obligations is going to be worked through. That is what we will want to do.

I agree with the sentiments that the noble Baroness, Lady Jones of Whitchurch, has expressed about the importance of dialogue and continuing discussion. There is continuing work to be done on this matter with this Bill and with the responsibilities that the Government now have as an independent maritime state. I want to put on the record and re-emphasise that, through the committee or through other work, it is vital that the communications and collaborative working with the Crown dependencies are designed to ensure that we may not ever need to use this last-resort measure. That is the whole purpose of dialogue and good friendship in protecting, as I have said, the British family. I say publicly that I understand the sentiments that the noble Baroness has expressed.

I shall repeat this so it is on the record: the committee could deal with issues that may lead to the activation of the permissive extent clause. It is not intended that this clause and the regulation-making power that it relates to would be used to legislate for the Crown dependencies without their consent, unless it were to become necessary to implement an international obligation that applied to them. I emphasise again that that would only ever be as a last resort, after full consultation and the exhaustion of all other options.

I shall answer some of the questions that were asked. I looked at the Ministry of Justice guidance on this matter. I say to the noble Lords, Lord Anderson of Ipswich and Lord Pannick, that the MoJ advises that although consultation and consent should be sought in all circumstances, PECs can be included in Bills without the prior agreement of the Crown dependencies in exceptional circumstances and where a Bill engages the UK’s constitutional responsibilities for defence and international relations. This position is reflected in the Fact Sheet on the UK’s Relationship with the Crown Dependencies that was published by the MoJ in February this year. I will look at what both noble Lords, with their legal advantage over me, have said. I have referred to the MoJ guidance and that is the best that I can do on the matter, but it is available for further consideration.

I would also say to the noble Lord, Lord Faulkner—and to all noble Lords—that working with Crown dependency officials and Ministers will clearly be very essential. We raised the idea of this clause before the Bill was introduced in January, then discussions took place at official level aiming to narrow the scope of the clause to what is required to protect the British family and other Crown dependencies. We consulted on them formally later this year. As I say, this is why the discussions for this Bill are specifically about Clause 36 and our international obligations. I should also say to the noble Lord that this clause does not legislate for the Crown dependencies before activating the PEC. We would consult and seek to achieve the same results through other options—for instance, of course, Crown dependency domestic legislation.

On seeking consent before extending legislation, we would always—I put this on record—seek to resolve any issues through collaborative means. There are many examples of this in the history of our great relationship. Indeed, my noble friend Lady Couttie is right that it would not be appropriate for the UK to include a PEC in respect of domestic legislation. This is about international relations. My noble friend also referred to non-relevant international agreements not applying. As a matter of policy and convention, we do not extend treaties or agreements to the Crown dependencies unless they ask us to. So, if an agreement does not benefit the Crown dependencies, it is unlikely that they would ask us to extend it to them.

I certainly heard what the noble Lord, Lord Beith, said. I have always taken note of the Constitution Committee. I understand all the points that have been made. I have at least sought to put on the record that this is a last resort relating solely to international obligations for which the UK Government are responsible. This is the key point about these matters and why it is important that, to protect the interests of the British family in terms of the international obligations to which we all have to adhere, the UK Government have this last-resort opportunity.

Obviously, as I said in my opening remarks and closing speech, I am looking to a situation where our relationship with the Crown dependencies is extremely strong—as I believe it is—and we never have to relate to the use of this clause. I personally do not think that it is a legitimate answer or desire if we therefore do not have an opportunity of last resort. Let me use an example, to take us back to fish. If there is illegal, unregulated fishing in a certain jurisdiction and sustainable fishing is not being undertaken, it falls on the UK Government to undertake this under our arrangements. We need an opportunity for the UK Government to have the scope and the possibility of ensuring that, across the British family, these obligations are adhered to on behalf of us all.

I always stand to attention when certain noble Lords feel strongly about something but, although I understand the points that have been made—particularly those made by the noble Lord, Lord Beith—this is an area where the UK Government, Defra and, certainly, the Fisheries Minister, want to take forward the committee and other discussions. That is how we will restore the harmony that I think we instinctively want between all the Crown dependencies and the UK Government as part of the British family.

I am very mindful and, because I am chastened, I will obviously take back to my ministerial colleagues all the points that have been made. However, I respectfully beg to move because I think that the UK Government must have a mechanism of last resort.

Photo of Lord Lexden Lord Lexden Deputy Chairman of Committees, Deputy Speaker (Lords) 5:00 pm, 12th November 2020

My Lords, I have received a request to ask a short question from the noble Lord, Lord Faulkner of Worcester.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, I express my appreciation to the Minister for the considerate and thoughtful way in which he responded to the debate. I would just like clarification on that very last point. He has drawn attention, quite rightly, to the constitutional history between the United Kingdom Government and the Channel Islands. Does he not accept that the way in which harmony can be restored is by just saying “yes” to this question: if the Channel Islands do not consent to the use of the PEC, will the Government not insist on it?

Photo of Lord Gardiner of Kimble Lord Gardiner of Kimble The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

My Lords, I understand the instincts of the noble Lord exactly. On international obligations, the whole point about the last resort is that, if international obligations were not being adhered to in a certain part of the British family, it would be the responsibility of the UK Government to act accordingly. All I say in answering the noble Lord— positively, I hope—is that I believe that everyone I have spoken to who would have responsibility would work collaboratively and exhaust every option available. It would be triggered only if all those options were exhausted in order to adhere to international obligations. This is my point.

Also—if I am allowed to say this and if this is the last moment—I respect immensely all noble Lords who have participated in the consideration of this Fisheries Bill. This is indeed my first experience of us dealing with a Bill as the first House; I can tell your Lordships that, when I saw the number of amendments coming back from the other place, I was not the only one whose heart may have sunk a bit. I think it shows that, when we are the second House and have other points to make, the other place sends us messages back as well. I place on record my deep appreciation of the Front Bench opposite and the Back Benches on all sides of the House for the collaborative way in which I believe we have worked, seeking to do the best we can for the marine environment and the future of our fisheries communities—which, after all, bring us such nutritious food, often in very difficult circumstances. I place my thanks on record and have no doubt that we will have further work to do.

Photo of Lord Beith Lord Beith Liberal Democrat

My Lords, I am grateful to the Minister for the care that he has taken over this but I am afraid that he was not as persuasive as he sometimes is—certainly for me. I want to pick up on a couple of his points before thanking the noble Lords who took part in this debate.

On international obligations, the dependencies understand and carry out their international obligations. They have the legislative and policing capacity to do so, and the UK Government would not face any problem in persuading them to take the necessary and appropriate action where it was clear that it was needed. There are many areas in which international obligations exist and the Government do not appear, as far as I can see, to be running around creating powers like this in areas in which conditions could arise where there are international obligations to be satisfied. The existing system works and does not need to be changed.

Secondly, on the legal situation in both Guernsey and Jersey, which was so helpfully raised by the noble Lord, Lord Anderson of Ipswich, the note that was passed to the Minister was not really about that—I do not blame him for that—but about the legal situation on including a permitted extension clause in the Bill in the first place. It does not really address what would happen under Guernsey or Jersey law if the Government attempted to use the power. The amount of uncertainty that exists in that area is something that the Government will have to take into account.

The speech of the noble Lord, Lord Anderson, and the points he raised illustrated the high level of knowledge and experience that Peers brought to the debate. I mention the noble Lords, Lord Anderson, Lord Faulkner, Lord Northbrook and Lord Pannick, the noble Baronesses, Lady Couttie and Lady Jones, and my noble friend Lady Bakewell, who suggested that the Minister should withdraw the clause, which could be achieved by accepting my amendment, in order to discuss the matter further with Guernsey and Jersey.

The Minister has not accepted good advice but, at such a late stage, in the face of Commons acceptance of the clause, our options are limited, and I do not think a vote would be helpful. I can only hope that the very severe response from experienced and knowledgeable Members of this House has made clear to Ministers that on no account should they make use of these powers without having obtained the consent of the Crown dependencies to do so. They would face a very serious reaction if they were to attempt such a course without consent. On that basis, I beg leave to withdraw my Motion.

Motion 22A withdrawn.

Motion on Amendment 22 agreed.