My Lords, I thank the noble Baroness for her introduction to these three SIs, and for the courtesy of meeting us, with her officials, beforehand. I thank all noble Lords who have spoken in this debate. As has been said, these SIs are of vital importance to the future of the UK fishing industry. We need something of this kind because we need to understand the arrangements that will be in place on day one. If we do have a no-deal exit—I echo the view of noble Lords who have said that it is very much to be avoided and regretted—then we cannot afford to be in a situation where people on the high seas are allowed to do their own things and are not regulated at all, which may otherwise be the point. Therefore, we do need some rules about all of this.
The EU withdrawal Act set out that, in SIs of this kind, there should be only the technical details that are necessary to ensure continuity with the previous EU rules and requirements. At this point, we should just be trying to mirror, as far as we can, the existing EU rules, accepting that more fundamental changes should be matters for another day, when we are able to give the proposals deeper scrutiny and talk about the wider issues that noble Lords have, quite rightly, raised today.
We have a major concern that these proposed SIs go way beyond the withdrawal Act remit—an issue raised by the noble Lord, Lord Deben, the noble Baroness, Lady Byford, and others. In a number of areas, the SIs anticipate further changes that the Government expect to make to fisheries legislation, based on the fisheries White Paper and the Fisheries Bill currently being considered in the Commons. They also anticipate that the oversight and enforcement functions will be absorbed by the new environmental watchdog, proposals for which are set out in the draft environment Bill, which is not even expected to be published in its final form until the next parliamentary Session. These assumptions were confirmed in the letter sent by Defra to the Secondary Legislation Scrutiny Committee, which had raised issues about these points.
This really is not good enough. While I understand that the drafters of these SIs do not always have UK institutions comparable to those of the EU, they have an obligation in these EU exit SIs to match the existing powers, functions and responsibilities in the relevant EU legislation, and to match, as far as they can, the powers that exist in EU institutions. These SIs fail to do that. It cannot simply be assumed that the Fisheries Bill, which we have never considered in your Lordships’ House, and the outcome of which we do not know, will provide the answers. It may also be that, when we get to the Fisheries Bill, we will have the opportunity to debate discards, the trawling of the seas and so on. Those are, quite rightly, issues for another day. What we have before us now should not be a precursor to the Fisheries Bill but, as far as possible, what we have under the current EU arrangements. That is not what we have in this SI. I hope the Minister can address these concerns in her response.
On the specifics contained in these SIs, the SIs remove the functions in the common fisheries policy that are currently overseen by the European Commission—for example, obligations to provide assessments and reports to the European Commission, including the provision of data on stock quantities and the reporting of certain catches against gear type. They also fail to replicate the Commission’s enforcement functions, which will limit the powers of the future office for environmental protection, since the functions would already have been removed from these SIs and would no longer exist in UK law. This would make it very difficult for a future office for environmental protection to take those powers on, as those would be powers that it was not already expected to enforce. As currently drafted, there is a real problem in these SIs concerning the lack of oversight and enforcement. Does the Minister accept that they fail to replicate the European Commission's functions in full? Can she explain how the department intends to rectify that omission?
The regulations in the first SI also remove the obligation on member states to carry out certain inspections and take action on certain infringements—including the establishment of effective, proportionate and dissuasive penalties. The regulations in the second SI remove the requirement to update the list of illegal fishing vessels every three months. I just give those as examples. Is the Minister concerned that these omissions send the wrong signal to fishers who—occasionally—seek to flout the rules, and that more steps need to be taken
to emphasise to those fishers that they will be dealt with under an enforcement regime on a par with that of the EU from day one? It is important that the noble Baroness clarifies the position on that matter.
I now turn to the issue of the replacements for the European Fisheries Control Agency and the Scientific, Technical and Economic Committee for Fisheries. There is no apparent substitute for the important role that the EFCA plays in the co-ordination of inspection facilities at European and international levels. This whole issue of co-ordination was raised by the noble Lord, Lord Deben, who quite rightly made the point that, whatever we do, there will be a need for a continuing common policy. He is absolutely right on that. The noble Lord, Lord Teverson, was also right in saying that if we do not get that right from day one, if there is any room for misinterpretation or obfuscation on that whole issue, then there will be a real danger of conflicts on the high seas. We need to have a continuing liaison with our European counterparts to ensure that we know where we are from day one, and to ensure that everybody understands the rules. What arrangements have been made to retain third-party status and to continue to share information about the implementation of rules and standards at UK level? We need to ensure that we have some security and clarity for the fishers as well as continued conservation, which a number of noble Lords quite rightly raised as an important priority.
The regulations in the first SI also remove the ability of member states to share vessel monitoring system data with other member states when a vessel is fishing in that other member state’s waters. This could lead to overfishing, so sharing access to that data is crucial. What arrangements are being made to maintain the maximum co-operation on data sharing with other countries, and indeed with the EU?
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On the STECF, the SIs remove references to its oversight and advisory role. I understand that that organisation will not have a formal function once we leave the EU, but why can the SIs not place an obligation on the Secretary of State to consult with a different specified scientific body, such as Cefas? The SI makes a more general commitment to the best scientific advice and so on, but the more we can pin this down to the actual organisations that will provide that scientific support, the more clarity we will have that it will be dealt with in an organised and effective way.
I go back to the issue of conservation, which has been a running theme through our debate this evening. The noble Lord, Lord Teverson, said that I would raise the issue of the maximum sustainable yield, and I am going to do that because it came up particularly in reference to the third SI. That SI omits the link to Article 6 of Regulation 2019/124, which states that total allowable catches should be set in line with,
“the principle of sustainable exploitation”,
and maximum sustainable yield. We need to see that important principle specified and written down. In its letter to the Secondary Legislation Scrutiny Committee, Defra said that it was omitted because the objectives will be restated and updated by the Fisheries Bill. But as I and others have already said, it is not good enough
to assume that these issues will be picked up in a future Bill. As things stand, there appears to be no legal commitment to ensure that fishing limits will be set within the maximum sustainable yield, which is a very important principle. These SIs represent a step backwards for the environment and for sustainability. I would be grateful if the Minister could clarify whether she accepts that the maximum sustainable yield provision should have been retained in this SI. What steps will she take to correct the omission and ensure that it is spelt out clearly?
The noble Lord, Lord Teverson, talked about advisory committees. As he said, these SIs delete references to the advisory councils, which have played an important role in bringing stakeholders and the scientific community together in the past. Defra has explained that the reason for this is that it is consulting the sector on a new fisheries advisory infrastructure. I understand that and I know, again, that it is anticipated that this will be spelt out in more detail in the Fisheries Bill. This might all be well and good, but it takes time. The details of what will be proposed are still not clear, and there seems to be no reason why the EU-style advisory council could not have been carried on in the interim. We will otherwise have a vacuum where those consultations are not carried on on a formal basis. Does the Minister now accept that an interim arrangement based on the original model should have been written into the SIs? Will she now agree to take steps to establish an interim advisory structure before the Fisheries Bill can be finalised?
Finally, in a number of places the second SI removes a requirement to act under EU law and makes it an advisory power instead. For example, the requirement on trans-shipment procedures now becomes a discretionary power to act. This again represents a watering down of the EU legislation. Equally, there is no provision to include the recitals of the relevant EU legislation on fishing in these SIs. This goes against the promises made during the passage of the withdrawal Bill to respect and reference recitals. Again, it represents a weakening of the legislation.
I hope that the Minister has made a note of our concerns and that she is able to provide reassurance that the Government intend to make good the omissions that we have identified, and ensure that the fishing sector and environmentalists can have more confidence in the Government’s intentions. I look forward to her response.