Duty to co-operate

Fisheries Bill – in a Public Bill Committee at 10:00 pm on 17th December 2018.

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“(1) A fisheries policy authority must co-operate with other fisheries policy authorities in the preparation and application of the JFS and any SSFS, the licensing of fishing boats, enforcement against illegal fishing activity, the determination and distribution of fishing opportunities and the prevention of discards.

(2) A fisheries policy authority may share information with another fisheries policy authority for the purpose of discharging its duty under subsection (1).”—

This new clause would place a duty to co-operate on all fisheries policy authorities in carrying out their functions under this Bill; and would provide for the sharing of information between fisheries policy authorities.

Brought up, and read the First time.

Photo of Luke Pollard Luke Pollard Labour/Co-operative, Plymouth, Sutton and Devonport

I beg to move, That the clause be read a Second time.

The debate on new clause 25 was a good one, and we can always revisit it. This new clause is about the duty to co-operate. The Minister has already decided that there is no need for a dispute resolution mechanism in relation to the different national fishing authorities in preparing the joint fisheries statement, or the Secretary of State’s fisheries statement—a position that the Opposition disagreed with. In the event of not having a system for resolving disputes, it would be important to have a duty to co-operate in the Bill.

The amendment has been drafted with the support of the Blue Marine Foundation. The CFP provides the glue that currently holds UK fisheries governance together. Without it there is a danger that the various devolved Administrations, the MMO and the IFCAs will draft different regulations, since they will essentially have control over their own areas with no statutory obligation to speak to anyone else or have due regard to what happens in neighbouring waters. The effect of this fracturing of regulation was highlighted by the Pitt review after the catastrophic 2007 floods, where administrators had differing operational practices and poor communication within them. The new clause seeks to resolve that in relation to fisheries.

The fracturing of regulation was deemed to exacerbate the harm caused by flooding. Marine regulation faces the same problem. Two different landing sizes for the same species in different adjacent areas, for instance, would have the effect of making some regulations inoperable and confusing. Without a duty to co-operate, fisheries administrations would be acting together in an ad hoc manner and co-operation would be seen as an add-on to their core purpose. This duty would put co-operation at the centre of the administrations, where it needs to be.

The new clause is similar to section 13 of the Flood and Water Management Act 2010, which followed the recommendations of the Pitt review. It does not replace the arrangements of the CFP but would go part of the way towards putting EU law into workable UK law.

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

Given that we already have co-operation on the joint fisheries statement, can the hon. Gentleman explain how his new clause would create an additional level of co-operation?

Photo of Luke Pollard Luke Pollard Labour/Co-operative, Plymouth, Sutton and Devonport

Effectively, because the Government have decided to vote down the very sensible proposal of having a dispute mechanism to resolve any disputes in preparation of the joint fisheries statement and the Secretary of State’s fisheries statement, the new clause seeks to ensure that all national fisheries bodies have a duty to co-operate and that there is no dispute in the preparation of the joint fisheries statement policies. That is why it is so important that an obligation to co-operate is placed on all authorities, to avoid some of the disputes that we otherwise anticipate, especially in the complex waters between England and Scotland, and ensure that the Scottish and English fisheries authorities can set appropriate levels.

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

How would we define and assess that co-operation, and who would make the call on how effective it is? I might argue, for example, that the UK Government are not co-operating on a certain aspect, whereas the UK Government might say, “Well, we are co-operating.” Different people would have different perceptions. How would this function in reality?

Photo of Luke Pollard Luke Pollard Labour/Co-operative, Plymouth, Sutton and Devonport

The duty to co-operate is a well-established legal text within primary legislation, so there is already an established understanding of what that means. On that basis, I will sit down and let the Minister respond.

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

I know that we have discussed this issue earlier, but it is already provided for elsewhere in the Bill. I invite the hon. Gentleman to look at clause 5(1), in particular, which states:

“The fisheries policy authorities must prepare and publish a JFS before 1 January 2021.”

There is therefore already a legal obligation on all the fisheries policy authorities. Also, clause 3(1) states:

“A JFS may only be prepared by the fisheries policy authorities acting jointly”.

The fact that every fisheries policy authority is under a legal obligation to agree a JFS, and the fact that statement can be established only by those authorities acting jointly, already gives effect to a legal requirement to act jointly and in good faith to agree such a statement.

Photo of Luke Pollard Luke Pollard Labour/Co-operative, Plymouth, Sutton and Devonport

The title of clause 5 refers to “the first fisheries statements”. Can the Minister suggest what will happen in the event of a dispute on the second or third statements?

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

In the event that the statement is amended, the same rules apply. It can only be applied by the authorities acting jointly and we will have to agree these things. The first statement must be done by 2021, but any statements after that will obviously also be required, because there is a requirement to have a JFS. There will be more than one and the Bill also sets out that the statement must be reviewed at least every six years.

Photo of Luke Pollard Luke Pollard Labour/Co-operative, Plymouth, Sutton and Devonport

I thank the Minister for those remarks. They do not go much of the way towards reassuring us that the second or third fisheries statements will have any element of co-operation. Therefore, in the absence of a dispute resolution mechanism, which would address disputes in preparation for fisheries statements, and in the absence of him taking on board the duty to co-operate, I think we are storing up trouble that we can quite clearly anticipate in future. I suspect that, as I mentioned previously, some industrious journalist will dig out this Hansard report when there is a dispute between the different national fisheries authorities, and it will then be flagged to the wider public that this was anticipated and not resolved.

Photo of James Gray James Gray Conservative, North Wiltshire

I think that was an intervention on the Minister, who will now conclude his remarks.

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

It was a long intervention, but I have been guilty of that myself at times.

I will just point out that clause 5 goes on to say, in subsection (3):

“The fisheries policy authorities must review a JFS they have prepared and published whenever they consider it appropriate to do so and in any event—

(a) before the end of the period of 6 years beginning with the day on which it was published, and

(b) before the end of the period of 6 years beginning with the end of the most recent review.”

I therefore do not share the hon. Gentleman’s analysis that the duty to co-operate and to work jointly, and the legal obligation to have a fisheries statement, expires after the first one. Clause 5(3) is clear that that becomes an enduring obligation, and I am happy to make that clarification.

Those are the reasons why I oppose the new clause. As I have said many times, the Bill respects the contours of our devolution settlement. We have a long-standing track record of successful concordats and memorandums of understanding that deal with fisheries. When we approach an issue such as the December Council and annual fisheries negotiations, we send a UK delegation. We have a good track record of working together and I believe that the approach we have outlined here is the best one to ensure that we have a UK framework to deliver on those sustainability objectives.

Photo of Alistair Carmichael Alistair Carmichael Liberal Democrat Chief Whip, Liberal Democrat Spokesperson (Northern Ireland)

I support the new clause, which I think would improve the Bill. I certainly take the view that a dispute resolution mechanism would be preferable. In the absence of that, however, having a duty to co-operate would at least allow for a situation in which any party that was not co-operating could be subject to judicial review, because they would be in breach of a duty given to them under the law. For the Minister to say that there is an imperative to reach an agreement on the face of the Bill presupposes that everybody will work in good faith. In the event that people are not working in good faith, there has to be a mechanism for identifying that. The Bill is currently deficient in that regard. The new clause is second best, but it would be better than nothing.

Photo of Luke Pollard Luke Pollard Labour/Co-operative, Plymouth, Sutton and Devonport

I think that the points have been well established, but I suspect that the Minister will not accept the new clause. I suggest that he thinks carefully about the context in which we are raising concerns here, in good faith, to avoid trouble in future. I suggest that he considers bringing back an element of it when the Bill is considered in the other place. On that basis, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 15