Duties relating to a determination of fishing opportunities

Fisheries Bill – in a Public Bill Committee at 2:45 pm on 13 December 2018.

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Photo of Brendan O'Hara Brendan O'Hara Shadow SNP Spokesperson (Inclusive Society) 2:45, 13 December 2018

I beg to move amendment 2, in clause 19, page 10, line 38, at end insert—

“(A1) A determination under section 18 may not be made or withdrawn without the consent of the Scottish Ministers.”

Photo of David Hanson David Hanson Labour, Delyn

With this it will be convenient to discuss amendment 3, in clause 19, page 10, line 41, leave out paragraph (a).

Photo of Brendan O'Hara Brendan O'Hara Shadow SNP Spokesperson (Inclusive Society)

It is a pleasure to see you back in the Chair, Mr Hanson. I rise to speak to amendments 2 and 3, which appear in my name and the names of my hon. Friends the Members for Kilmarnock and Loudoun and for Edinburgh North and Leith (Deidre Brock). The amendments would ensure that a determination under clause 18 could not be made or withdrawn without the consent of Scottish Ministers.

In moving the amendments, we agree with the Scottish Government’s position that clauses 18 and 19 run contrary to the devolution settlement and will seriously undermine the existing long-held powers of Scottish Ministers. We also share the Scottish Government’s concern that clause 18 deals with matters that fall squarely within the legislative competence of the Scottish Parliament in relation to complying with international obligations. Although we accept that the United Kingdom is still responsible in international law for compliance with its international obligations, it does not automatically follow that the UK Government alone and in isolation are responsible for implementing and complying with those obligations in domestic law.

Of course, I do not need to remind hon. Members about paragraph 7(2) of schedule 5 to the Scotland Act 1998, which makes it absolutely clear that the observance and implementation of international obligations are not reserved matters. According to the 1998 Act, if powers are not reserved, they are devolved. Although I understand the UK Government’s view that the function being executed in clause 18 can be exercised UK-wide, it remains the case that the purpose of the clause relates to matters that are wholly devolved.

As currently drafted, clause 19 requires the Secretary of State only to consult with the devolved Administrations before making a determination regarding fishing opportunities in Scottish waters. For example, does the Minister intend to set quotas for Orkney crab, as clause 18 effectively gives him or the Secretary of State the power to do? Does the Minister intend to tell Scottish lobster fishermen how many days they can go to sea, as clause 18 gives him or the Secretary of State the power to do?

Our amendment seeks to defend the devolution settlement and require the Secretary of State to obtain a legislative consent motion from Scottish Ministers before seeking to legislate on any matters relating to the Scottish zone and the regulation of Scottish fishing boats outside of the Scottish zone, again, as safeguarded in section C6 of schedule 5 to the Scotland Act 1998. The legislative consent motion on the European Union (Withdrawal) Bill, which was submitted to the Scottish Parliament in September 2017, sets out clearly that the Scottish Government’s position is that policy responsibility and expertise for matters within devolved competence lies solely with the Scottish Government, which is accountable to the Scottish Parliament. In these amendments, we are asking the UK Government to respect that position.

Photo of Paul Sweeney Paul Sweeney Shadow Minister (Scotland)

It is a pleasure, as ever, to serve under your chairmanship, Mr Hanson.

Our view in the Labour party is that the Scottish Government, and therefore Scottish Ministers, do not currently have the competence to exercise powers to determine fisheries opportunities and, as such, the consent of Scottish Ministers is not a requirement. As per the devolution settlement, the opportunity to determine fisheries opportunities currently rests with the European Council. That will be transposed to UK Ministers when we leave the European Union. It is therefore the case that any provision requiring the UK Minister to seek the consent of Scottish Ministers in advance of the determination would in essence act as a potential veto on the Secretary of State and the United Kingdom’s ability to determine fisheries opportunities across the United Kingdom common fisheries area.

We have seen throughout the process of Brexit and the subsequent required legislation, such as the Trade Bill, the Agriculture Bill and now the Fisheries Bill, that the Scottish National party wish to extend the powers afforded to Scottish Ministers and what decisions require their consent. I disagree wholeheartedly with that approach, as it is not in line with the devolution settlements, including the 1998 Act, which would have been voted on previously. If SNP Members were to address this issue through the proper channels by trying to amend the devolution settlements prima facie, rather than by trying to do it by the back door, that would be a more acceptable approach.

Photo of Alan Brown Alan Brown Shadow SNP Spokesperson (Transport), Shadow SNP Spokesperson (Energy)

As my hon. Friend the Member for Argyll and Bute pointed out, the way the Scotland Act was originally set up, if matters are not listed as reserved, they are devolved. Surely it follows that the repatriation of powers from Europe to the UK should follow that devolution settlement and go to the rightful Parliament.

Photo of Paul Sweeney Paul Sweeney Shadow Minister (Scotland)

Of course, the complexity lies in the interface with international obligations. The Scotland Act 1998 makes it clear that,

“If the Secretary of State has reasonable grounds to believe that any action proposed to be taken by a member of the Scottish Government would be incompatible with any international obligations, he may by order direct that the proposed action shall not be taken.”

That shows a clear inconsistency with the Scotland Act.

That is corroborated by the Law Society of Scotland, which states:

“We welcome the duties of the Secretary of State set out under Clause 19 when making a determination under clause 18. The provisions require the Secretary of State to consult with devolved administrations and the Marine Management Organisation before making or withdrawing a determination. The clause also requires the Secretary of State to publish a notice of a determination after it being made or withdrawn, lay a copy of the notice in Parliament, and send a copy to the devolved administrations. This will assist in terms of ensuring clarity and accountability.”

Of course, if our amendment had been upheld with regard to the dispute resolution mechanism, that would have been a far more sustainable way to have resolved any disputes, rather than leading to an inevitable impasse and total logjam in the processing of a common fisheries area in the UK.

Photo of Alan Brown Alan Brown Shadow SNP Spokesperson (Transport), Shadow SNP Spokesperson (Energy)

The hon. Gentleman talks about logjams and he mentioned the other Bills on which the Scottish Government are withholding a legislative consent motion. Is he saying that the Scottish Government should just acquiesce to Westminster and not defend the rights of the Scottish Government?

Photo of Paul Sweeney Paul Sweeney Shadow Minister (Scotland)

That is a rather unfortunate characterisation of the situation. We want to have a consensual approach where arbitration is done in a sustainable way, not political opportunism leading to an impasse in the economic progress of this country.

Photo of Alan Brown Alan Brown Shadow SNP Spokesperson (Transport), Shadow SNP Spokesperson (Energy)

The hon. Gentleman’s own party voted with the SNP and other parties against the European Union (Withdrawal) Bill. The Scottish Government withholding legislative consent in some of these cases is actually in line with cross-party support in Parliament.

Photo of Paul Sweeney Paul Sweeney Shadow Minister (Scotland) 3:00, 13 December 2018

Of course, these matters will be considered on a case-by-case basis, but let us paint a scenario where there is an impasse in the creation of a common fisheries policy. It would lead to huge economic difficulties as long as that situation—that impasse—persisted, and that is not manageable or sustainable from an economic point of view for Scottish fishermen, and it would not be acting in their interests.

That is why we will also not support amendment 3, which seeks to remove Scottish Ministers from clause 19 entirely. I fear it may have unintended consequences, and I ask the hon. Member for Argyll and Bute to clarify the consequences. If we are to remove Scottish Ministers from the equation and the clause, does he think that will mean that Scottish Ministers will have the power over this area, or simply that there would be no requirement to consult them at all? Both outcomes are incredibly undesirable and the Labour party is therefore unable to support that amendment.

Photo of Owen Smith Owen Smith Labour, Pontypridd

It is again a pleasure to serve under your chairmanship, Mr Hanson. I did not intend to speak to these amendments, but as a former shadow Secretary of State for Wales and for Northern Ireland I have a few things to say.

I heard with interest the contribution from the hon. Member for Argyll and Bute—the beautiful Argyll and Bute. I would say straightforwardly that I think he is wrong to say that the clause is contrary to the devolution settlement—I think the reverse is true. The clause reflects the current devolution settlement. It is for the UK as the sovereign body to determine our engagement with and adherence to international treaties, and to therefore determine what the fishing opportunities for the whole of the UK would be, in accordance with the agreements that are reached internationally on fishing.

My hon. Friend the Member for Glasgow North East is completely right that the reality of the amendments is that they seek to change the devolution settlement by the back door. Given the long-standing and perfectly admirable—although, in my view, entirely wrong-headed—view of the SNP that it wishes to have an independent Scotland, it is entirely understandable that it should try to use this mechanism to get closer to that objective, but it is the wrong mechanism and the wrong Bill in which to seek to fundamentally change the nature of our devolution settlement, and my colleagues on the Front Bench are completely right to oppose it.

I would also add that I cannot understand the value of striking Scottish Ministers out of clause 19. That would be a retrograde step because it would mean no consultation with Scottish Ministers, which would be a fundamental mistake.

Photo of George Eustice George Eustice The Minister of State, Department for Environment, Food and Rural Affairs

The purpose of clause 19 is to establish a requirement for the Secretary of State to consult the devolved Administrations. As other hon. Members have pointed out, this matter and the powers outlined in clause 18 are incontrovertibly a reserved UK matter. The amendment would undermine the power of the UK to determine UK resources for the purposes of international law, and relates directly to a UK function.

Where the UK is subject to an international obligation to achieve a result by reference to a fixed quantity for the UK as a whole, the UK Government are responsible for determining how that is achieved. In this case, the responsibility will fall on the UK, under the UN convention on the law of the sea, after we leave the EU.

Compliance with or implementation of international obligations is devolved, but determining UK fishing opportunities is not a function that is exercisable separately in or as regards Scotland or any other part of the UK. It is not within devolved competence to determine, or to block the UK Government from determining, fishing opportunities for the UK as a whole.

Clause 18(2) explicitly sets out:

“A determination under subsection (1) may be made only for the purpose of complying with an international obligation of the United Kingdom to determine the fishing opportunities of the United Kingdom.”

It makes crystal clear the scope of clause 18. It cannot relate to any devolved matter at all; it can relate only to matters relating to the UK’s compliance with international obligations. It would therefore not be appropriate to seek consent from any devolved Administration when determining fishing opportunities. In clause 19, we set out something that we think is reasonable: a requirement to consult.

Photo of Brendan O'Hara Brendan O'Hara Shadow SNP Spokesperson (Inclusive Society)

I thank the Minister for his reply. As I said on day one, the Scottish Government and Scottish Government officials have worked very closely with him and his officials—for which we are very grateful—and this was one of the few major sticking points. I am disappointed that we do not appear to be able to take this further, but I reiterate that we believe that the amendment is entirely in line with the Scotland Act 1998, and I will therefore press it to a vote.

I am disappointed but not at all surprised by the contribution of the hon. Member for Glasgow North East. Members of the Scottish National party are here at least to defend the devolution settlement, which makes it perfectly clear that if a matter is not reserved, it is devolved. As my hon. Friend the Member for Kilmarnock and Loudoun said, the powers that come back from Europe should go to the relevant devolved authority. In this case, I believe it should be the Scottish Parliament. That is why a legislative consent motion should be sought, rather than simply consultation.

Photo of Paul Sweeney Paul Sweeney Shadow Minister (Scotland)

To clarify, section 58 of the Scotland Act 1998 makes it quite clear that this is an international obligation, and therefore the Secretary of State supersedes any devolved decision that would undermine the UK’s international obligations. This issue has a clear interface with the UK’s international obligations. Therefore, it is entirely consistent with what the Scottish people democratically voted for in the referendum that created the Scottish Parliament and the Scottish Government, and with the increased scope of the devolved powers under the Scotland Act 2016. Therefore, in our view it is entirely consistent with the Scottish people’s decisions.

Photo of Brendan O'Hara Brendan O'Hara Shadow SNP Spokesperson (Inclusive Society)

I fundamentally disagree. I do not want to take up much more of the Committee’s time with dancing on the head of the pin of the Scotland Act, but let us be absolutely clear that the observance and implementation of international obligations is not reserved. It is not the sole responsibility of this Parliament and the United Kingdom to implement and comply with such obligations. I therefore wish to press the amendment to a vote.

Question put, That the amendment be made.

The Committee divided:

Ayes 2, Noes 14.

Division number 8 Fisheries Bill — Duties relating to a determination of fishing opportunities

Aye: 2 MPs

No: 14 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly negatived.

Clause 19 ordered to stand part of the Bill.

Clause 20