Rural Economy and Connectivity Committee

Meeting date: Wednesday, August 19, 2020

Official Report 628KB pdf

---

Fisheries Bill

Agenda item 1 is consideration of a legislative consent memorandum—LCM-S5-41, which was lodged by Fergus Ewing, the Cabinet Secretary for Rural Economy and Tourism. The LCM relates to the Fisheries Bill, which is a piece of proposed United Kingdom Parliament legislation. As the lead committee, we are required to reflect on the memorandum and consider whether we are content with its terms. We will then report our findings to the Parliament.

The Delegated Powers and Law Reform Committee considered the LCM yesterday, and members have a note of its comments.

I welcome, from the Scottish Government, Fergus Ewing, the Cabinet Secretary for Rural Economy and Tourism; Caroline Cowan, head of European Union exit in the directorate for Marine Scotland; Paul McCarthy, policy manager; and Marie Penman, lawyer.

I invite the cabinet secretary to make an opening statement of up to three minutes.

Thank you, convener, and good morning to all members of the committee. Thank you for giving me the opportunity to discuss the UK Fisheries Bill and the legislative consent memorandum.

You will have noted that I have recommended that we consent to the bill as introduced in full. Unlike for other UK bills, the co-operative working between officials and indeed ministers in the Scottish Government, the Department for Environment, Food and Rural Affairs and the other devolved Administrations has demonstrated what can be achieved when the UK Government seeks to work with us and not impose its plans on us.

I also contend that the bill, to be frank, would be the poorer without our input. The input of Scottish expertise and knowledge has, I believe, significantly improved the bill from the original draft and from its previous iteration, and I think that DEFRA has recognised that as well.

This Government believes that the UK Government’s failure to seek an extension to the Brexit transition period is reckless and is creating unhelpful cliff edges on a host of policy matters, including fisheries. However, we have made it clear that, as a responsible Government, we will work on a four-nations basis so that we are as prepared as we can be for the end of the transition period.

The Fisheries Bill seeks to ensure that we have a legal framework to operate outside the European Union so that we can deliver sustainable fisheries management in tandem with the protection of the marine environment. I am confident that the bill gives the Scottish ministers and the Scottish Parliament the necessary powers and tools to do that in a way that respects devolution.

I appreciate that there is some concern about the Parliament’s role in the context of some of the provisions in the bill. I fully agree that the Parliament should continue to have the ability to undertake effective scrutiny. The joint fisheries statement, which sets shared high-level objectives for the whole UK, will be laid in each of the four legislatures before being finalised. When it comes to UK-wide legislation, I envisage that being the exception and certainly not the norm. I welcome that the protocol that has been developed will ensure that the Parliament has a scrutiny role, and I will be happy to discuss that further, if the committee wishes.

Finally, although the LCM relates to the bill as introduced, you might be aware that a number of amendments were made to the bill in the Lords stages. I have written to the UK fisheries minister, Victoria Prentis, to set out our position on those. In particular, I am keen for the amendments on landing and remote electronic monitoring to remain in the bill, but I cannot accept them as they are currently drafted, as they clearly impinge on the devolution settlement. Therefore, I have asked my officials to work with DEFRA to see whether modifications can be made to protect devolution. I will keep the committee informed of developments, as necessary.

Thank you. We move to questions from members.

Good morning. Cabinet secretary, you mentioned the bill’s passage through the House of Lords. A number of individuals have highlighted to us the lack of legally binding duties and targets in relation to achieving fisheries management objectives, including sustainable fisheries stocks, net zero emissions fishing fleets and the duty to fish at sustainable levels.

We have received a briefing from the Marine Conservation Society, WWF and RSPB Scotland, which talks about the importance of

“putting environmental sustainability first and foremost in our fisheries management regime.”

Concern has also been expressed about the absence of a legal duty on the Scottish ministers to produce fisheries management plans. With regard in particular to local fisheries management, how will the committee be able to measure the Scottish Government’s progress in producing fisheries management plans?

The starting point of my response is to say that, as members know, in 2019 I published “Future of fisheries management in Scotland: national discussion paper”. The discussion phase ended last year and an analysis of the responses to that phase is near completion; I expect to revert to the committee shortly with the timescale for the publication of that analysis. The process and the responses were very positive.

It is essential that we recognise that we must promote the long-term sustainability—environmental, social and economic—of stock as well as its optimal utilisation. The principles of sustainable fisheries always underlie our approach to negotiations and were set out clearly in our discussion paper, in the context of fisheries as a devolved topic.

On the House of Lords amendments, we support the intention behind them but think that further work needs to be done on the technical wording. I will bring in Caroline Cowan and her officials to respond to the technical aspects of Mr Finnie’s question.

I thank the cabinet secretary for his comments. In the briefing that we have received, we are told:

“In Scotland, the Marine Atlas identifies fishing as the most widespread pressure on our seas alongside climate change, and the National Performance Framework Indicator on sustainability of fish stocks shows that just 54% are harvested sustainably.”

What steps can be taken to improve that situation?

Cabinet secretary, do you want to bring in your officials now?

I think so. We are guided by sustainability and always pursue that principle in the negotiations. In practice, we take scientific advice from the International Council for the Exploration of the Sea, and the negotiations are informed by that science.

As the original question covered some technical aspects of the legislation, it might be helpful if Caroline Cowan comes in or brings in another official, if appropriate.

Thank you, cabinet secretary. With regard to fisheries management plans, clause 6 of the bill requires each Administration to produce such plans, so there is a legal obligation to do so.

We are still working across the four Administrations to look at existing indicators—such as those in the national performance framework, those that are set by ICES and those in the sustainable development goals and under the United Nations Convention on the Law of the Sea—to identify exactly which ones to use. I understand that they will be part of the plans for measuring progress.

With regard to the House of Lords amendments, as the cabinet secretary said, the key issue of concern relates to the devolution aspects. As the amendments are written, they would not allow the Scottish ministers and the Scottish Parliament to produce the regulations in an area that is within our competence, so we are seeking to work with our UK Government colleagues to address that.

I remind Mr Finnie that the bill includes the climate change objective, which we will be required to demonstrate how we are meeting. In addition, if I remember rightly, the Scottish climate change legislation sets certain targets and obligations.

I am grateful for the detail in the reply, but it did not cover local fisheries management plans. Could we hear something about that?

If I may, I will hand over to Paul McCarthy, who is the lead on such matters.

As Mr Finnie has noted, there is an obligation on the four fisheries Administrations to produce fisheries management plans, which will cover mainly the stocks that are shared between the Administrations—in other words, the widely distributed stocks or the stocks in the North Sea, such as haddock, whiting and cod.

For the more local stocks that are not shared, such as crab and lobster, I believe that we are looking to bring forward management plans through our “Future of fisheries management” consultation document. I imagine—although I am not as linked into this area—that those will be steered mainly by the regional inshore fisheries groups, which are our main co-operative bodies for the management of local inshore fisheries.

I have a quick question for Mr Ewing about fisheries management plans. Will those be laid before Parliament? Will Parliament have a chance to scrutinise them?

I think that we will wish to consult Parliament. As far as the legislative commitment is concerned, to be accurate, I would like to check with officials to see whether there is any specific legal requirement. As the convener knows, we are subject to scrutiny, quite properly, now and in the future. The approach that I seek to take is to involve Parliament fully in any substantive issue of importance. I hope that I follow that approach. However, I do not want to transgress and commit any technical infelicity, so I will pass the question to our legal expert, Paul McCarthy.

As the committee will be aware, the bill imposes a legal obligation on the four Administrations to lay a draft of the joint fisheries statement before each legislature for scrutiny. There is no similar obligation with individual fisheries management plans, but the joint fisheries statement must contain a list of all the fisheries management plans that will be taken forward. It will then be up to each Administration to decide how best to consult on the details of their individual fisheries management plans.

10:15  

Cabinet secretary, you said that there had been good co-operation among the Governments on the Fisheries Bill, which is to be welcomed. How did the Scottish Government manage to strengthen the bill? Are you confident that the devolved competences will be respected, given that, as the DPLR Committee highlighted, a lot of power is being devolved to the secretary of state, rather than to the Scottish Government?

I thank Ms Watt for the question. I will respond with what is possibly the most important point that I will make this morning, which is that we are not delegating legal powers to the UK Government. In certain circumstances, where it is a matter of important administrative convenience, we propose to pass functions to the UK Government to be carried out. It is important to emphasise a point of principle, which is that, in recommending the LCM, we are not, in my judgment or according to the advice that I have had from my legal advisers, doing anything that passes powers to the UK Government.

To put it another way, nothing would be done without our consent. Any decision to allow the UK Government to exercise decisions in relation to matters would be taken only on the basis that we consent to those functions being carried out in that way.

I can give a detailed example that really gets to the meat of the thing. If the conversion factors for weighing fish were different in one part of the UK, that would, in effect, give additional quota to that part of the UK. I am talking about when fish are gutted on a vessel before landings, and the decision has to be made about measuring the landings in terms of assessing the quota utilisation. If those rules were different in parts of the UK, it would be tantamount to passing additional quota. That is a technicality, but I thought that the committee would be interested to know what exactly this would mean in practice.

The key thing is that nothing will be done without our consent. It will be possible for things that the fishing community wish to be done without, if you like, politics intruding to be done by administrative arrangement, but only if the Scottish Government and the Scottish Parliament are broadly in favour of that.

My next question follows on from John Finnie’s questions about sustainable fishing. You and I have been in this game long enough to know how important it is that all parties involved agree on the data. It has taken us a long time to get to sustainable yields, and a lot of that is based on the data that we get from ICES. Will all parties in the negotiations still have access to the same data, presumably from ICES?

My understanding is that that is the case. Plainly, the international negotiations need to be informed by science that is acknowledged internationally. That does not mean that there are not occasions when the advice is subject to questioning. Particular issues arise when it is argued that the data on the basis of which ICES draws its conclusions may be slightly out of date, or when fishermen argue that patterns of movement of fish from one block to another may not have been taken into account in the conclusions. That is just one example.

The key thing is that the advice will be informed by internationally accepted evidence, which is the only way in which international negotiations can be conducted.

The bill is a piece of paper; by itself, it cannot guarantee sustainable fisheries management. We need to have a set of policies—as do all other nations—recognising international obligations and the need to apply those obligations in practice in sustainable fisheries management, taking into account environmental, social and economic factors.

The fisheries objectives are not legally binding duties, so targets are not set. Following on from John Finnie’s question, how can you ensure that sustainable fishing is practised to ensure a future for the livelihoods of fishermen, their communities and future generations?

That is a wide question. Broadly speaking, legislation sets out a set of principles, and it is up to Governments, either nationally or internationally—in this case, both nationally and internationally—to apply those principles in practice. As I said a moment ago in response to Maureen Watt’s question, legislation by itself cannot guarantee sustainable fisheries. There needs to be a willingness and a shared determination—this addresses John Finnie’s question—to apply the principles in practice.

As I have said before, by itself, the law is just words on a page; it needs to be implemented in a way that meets our environmental aspirations but also provides fishermen and fishing communities with a reasonable return, which involves the application of those principles in practice.

I am not quite sure what Rachael Hamilton is getting at. If there is a technical aspect to the precise significance of law in this respect and Paul McCarthy has anything to add, perhaps he could do so now. If time does not permit, however, he could respond to the committee later, although time is short for consideration of the matter.

It is, indeed. Does that answer your question, Rachael, or do you want to come back in?

Baroness Young of Old Scone made a comment about putting a legally binding duty on

“public authorities to achieve these objectives and be accountable”.

However, if we are short of time now, perhaps we can come on to that when we talk about the matter in the chamber.

The Scottish Government has additional duties due to Brexit, so I want briefly to explore resources to support enforcement.

Given that Scotland accounts for about half of the UK’s fishing industry, and a great deal more than that when it comes to fishing opportunities, and given that the Barnett consequentials that we might derive from additional expenditure south of the border would be provided only on the basis of population size and, therefore, would cover only a small fraction of any additional costs that we might incur, has the cabinet secretary had discussions about the additional resources available to Scotland that were promised by politicians during the Brexit referendum debate?

Yes. I have had discussions about those matters with a succession of ministers, principally with George Eustice, who is now Secretary of State for Environment, Food and Rural Affairs, but who was formerly the fisheries minister. I have had constructive discussions with him.

To answer Mr Stevenson’s question directly, it is undoubtedly the case that, given the share of fish that lies off Scotland’s coasts, the funding received under the European maritime and fisheries fund—the EMFF—has not provided sufficient, commensurate financial support for overall investment in ports and harbours, improved capacity, ice-making equipment and a whole load of other valuable things for the industry. That has been the case within the EU. We have had funding, but I do not think that we have had sufficiently fair funding.

Secondly, within the UK, we have not yet had clarity about the future replacement of the EMFF post-Brexit.

My understanding is that those are not really matters that will be determined under the bill, which covers a lot of things. The issue is more one of discussion and consideration with the UK Government. I can absolutely assure Mr Stevenson that the matter is an extremely serious one, and I have raised it with successive secretaries of state. It was discussed when Mr Gove made a recent visit to Scotland and when we met in Buckie. I and colleagues raised that and other issues in the course of that meeting.

It is an extremely important issue, as are many other issues, but it is not one that will be determined in itself by the provisions of the Fisheries Bill, as I understand it.

I start by giving my thanks to Mr Ewing and his officials for the positive way in which the bill has been dealt with. It is great to see the two Governments working constructively together, and I hope that is an example of how future negotiations on the many issues that Brexit brings up will be conducted. I want to put that on record; this is a very positive outcome for our fishermen across the whole of the UK, and I thank the cabinet secretary for achieving that.

I understand that the Fisheries Bill is not about the detail, but it would be remiss of me not to ask the cabinet secretary, on behalf of our fishing fleet in the north-east, about what thought has been given to the future pressure from EU countries to continue to fish in our waters, as they have been doing previously. Our fishermen expect a bigger share of our fish in our waters. I just wonder how much consideration and thought has been given to how we are going to proceed. We will be out of the EU in a few short months, and our fishermen are expecting bigger opportunities to catch fish in our own waters. Where are we with those thoughts and discussions?

I thank Mr Chapman for his gracious comments. It is right that we should be constructive where we can. I can be persistent—some people may even say difficult—but never gratuitously so: it is only to stand up for Scotland’s interests. I have found that a good, workmanlike relationship with Mr Eustice in particular is an assistance. I have worked with him at the Brussels negotiations for the past four years, and that tends to allow a close relationship to build up. That is probably more important, if anything, between officials, as they work on a day-to-day basis in a way that perhaps does not happen in other areas.

I do not want to get carried away, however, as if this is some sort of glee club, because it ain’t. Just yesterday I had a conference call with leading players in the prawn sector, and they are really worried about the future of the sector and the potential continuing loss of the Spanish market, even after some kind of solution to Covid is, hopefully, found.

At the meeting with Mr Gove in Buckie, significant concerns about loss of market were raised by processors and fishermen. Concern was also expressed about a lack of clarity on the EMFF and the continued availability of labour post-Brexit.

There are differences, but—to answer the second part of Mr Chapman’s question—my job is to make sure that Scotland’s interests are best represented in the negotiations. Sadly, although at the meeting in Buckie I asked Mr Gove whether we could be involved in the talks, rather than being outside the room and getting a briefing afterwards, he has not yet come back to us.

10:30  

I know that we are discussing an important subject, and I do not want to curtail anyone’s questions, but short questions and short answers always make conveners happy. I like to be a happy chappie.

I invite Emma Harper to ask her questions.

Good morning. You said that the Fisheries Bill is better as a result of input from the Scottish Government, which is good to hear. It might be worth your expanding on that. In addition, could you clarify whether the bill applies to all fishing within the established exclusive economic zone? Will it work along with the inshore fisheries legislation? I am thinking of the 12-mile zone of our territorial waters.

John Finnie mentioned fisheries management plans. Crab, lobster and scallops are extremely important on the west coast, especially in the Solway waters in the Irish Sea. Does the bill apply to inshore fishing?

It sets out the principles that will apply to all fishing, but it will apply to different segments of the fisheries sector in different ways. Some fish species are subject to quota regulation and some are not—for example, nephrops are, but other shellfish types might not be.

It is a largely technical question, and I would answer it by saying that fishing is devolved to Scotland, and inshore fisheries management is substantially the responsibility of the Scottish Government. We set out some proposals for reform and improvement of inshore management—in particular, to allow decisions to be taken at a more local level, with greater local input from those involved, rather than being directed from Edinburgh. Our proposals also covered the bringing in of new entrants. The overall cost of getting in, which includes the cost of new vessels and licences, is quite high. Additional quota could be devoted to new entrants and preserved for local communities. Those are things that we can do. As I understand it, such things will not be impeded at all by the Fisheries Bill. If they were to have been, we would have had a lot to say about it.

I am conscious of the fact that each of the questions involves a substantive policy element and a technical element. If I have misspoken in any way on the technicalities, I might ask my officials to correct me today, if that is okay. However, I do not think that I have, so instead of taking up more time by bringing them in, I might just pass back to the convener for the next question.

Thank you for offering to provide clarification if anything that you have said is not quite spot on.

We move to questions from Colin Smyth.

I have a question about the fisheries objectives. In its consideration of the bill, the Environment, Climate Change and Land Reform Committee noted that

“in reality, some objectives will be prioritised over others and ... the Bill does not include a dispute mechanism”.

That issue was also raised in the House of Lords debate.

How do you envisage that joint working will manage trade-offs between the different fisheries objectives or disputes between fisheries management authorities? Does the Government think that clarity is needed on the hierarchy of the fisheries objectives? Could the relative importance of the different objectives be made clearer in the bill?

Again, there is a substantive aspect to that and a technical aspect. On the substantive side, it is my experience—I now have four years’ experience of this—that, in practice, the application of the principles is done through a long-established process of negotiation.

Some of those negotiations are carried out infra the UK, some are carried out with the EU and some are carried out with countries such as Norway, Iceland and the Faroe Islands. It is a long-established process. The negotiations are always informed by science, and that will continue to be the case. Leaving the EU does not mean that we dispose of the requirement to heed or have regard to sustainability. However, those principles are best put into practice by Governments that are all subject to international law and that engage not only with fishing interests but with environmental non-governmental organisations. I will meet those NGOs again shortly to discuss all the important issues that are involved.

The role of the law should be to set out the principles rather than try to dictate a particular approach, which is fraught with issues. That is my substantive response. I do not think that there is a need for a technical answer but, if there is a technical argument in which I am not fully versed, we will freely come back on that. I appreciate that an LCM is substantially a technical measure, but members are rightly concerned about very important substantive policy issues.

You might be aware that the Environment, Climate Change and Land Reform Committee, of which I am a member, has raised a number of points with this committee, including issues raised by peers in the House of Lords, which have already been referred to today. In addition, the ECCLR Committee has noted your previous reference to the Scottish Government’s intention to dynamically align with EU standards and regulations. Given that and given the keeping pace provisions in the Scottish Government’s UK Withdrawal from the European Union (Continuity) (Scotland) Bill, to what extent will Scotland have the practical ability within the UK internal market to set different policies for fisheries?

That is largely a technical question, but I am satisfied that there is the ability for policy divergence within the four nations of the UK, where that is appropriate. The key point is that no decisions would be taken with regard to the exercise of powers without the consent of the Scottish Government and the Scottish Parliament. It is important that the Government and the Parliament work together to get a modus operandi for how all this works out in practice.

The issue is probably mostly technical, so I would be grateful if Caroline Cowan could have an opportunity to add anything that she thinks is germane.

The joint fisheries statement provisions in the bill recognise that, as Mr Ewing says, different policies may be applied in each Administration, in recognition of the spatial and biological nature of fisheries.

In relation to interactions with other environmental legislation, my understanding is that the continuity bill applies to all areas within the Scottish Parliament’s competence, so anything in that would have application to fisheries, right out to the 200-mile limit. Clearly, marine environments are a little more complex, because of executive devolution. If the committee is interested in that, it is probably best if we write to you on it, given the complexities.

I hope that that answers the question.

I will bring Angus MacDonald back in briefly with one further question.

Thank you, convener. I have more questions via the ECCLR Committee so, if we cannot cover some of them today, it would be helpful if we could write to the cabinet secretary with them.

To the frustration of, I think, everyone, information is not yet available on the detail of the governance arrangements for common frameworks. It is clearly unhelpful that we cannot scrutinise the common framework governance arrangements alongside the legislative proposals. I ask the cabinet secretary whether he can shed any light on where the bill fits in to the UK common framework on fisheries.

The bill sets out the overarching legislative principles, which then need to be applied in practice. Yes, there is a lot of work to do and I hope that it can be done through adopting a constructive approach. The framework that the bill sets out that preserves the principle of the Scottish Parliament not being obliged to do things or being forced to do anything without its consent is the key issue. Where there is a will to work together, that can happen.

My concerns about fisheries issues are really more about the political decisions such as the negotiations that are being conducted in Brussels as we speak, access to markets, availability of financial support, access to labour, and the fact that we cannot resolve the ridiculous restrictions that apply to crew, particularly those from the Philippines. That last is absurd; it has been going on for years and years. I am afraid that we have argued about it with the UK Government, with support from across all parties in Scotland, and we have not got anywhere. There is a distinction to be made between legal issues and substantive issues. In my view, the legal provisions in the bill will not impact directly on many of the substantive issues that are more of political consideration than technical and legal matters.

That is a key distinction. Whatever one’s views about substantive issues, most of them will not really be determined by the bill.

Angus MacDonald wants to come back in; please be very brief.

It will be, convener. I have one salient question that picks up on what the cabinet secretary said. What arrangements are in place for the Scottish Government to participate in the international negotiations on fisheries that he has just referred to?

The answer to that is that the UK Government has not agreed to the requests that we have made repeatedly, most recently at the said meeting in Buckie with Mr Gove. He was, as always, impeccably polite and undertook earnestly to revert to me on that, but I am still waiting. It is never too late, Michael!

To be serious, we have requested that we be fully involved but we have not been so. Our officials have been involved to some extent, but the risk is that, unless we are involved to the fullest extent that we enjoyed in the annual round of negotiations in Brussels, and also the vital negotiations with Norway, the Faroes, and Iceland, it is common sense to say that there is a risk that decisions will be taken without Scotland’s position being fully set out, expounded, and advocated. That could lead to detriment to Scotland. That is a salient risk, setting aside the larger political questions about how realistic it is that the UK Government will implement the promises of the sea of opportunity, which was the promise that was made during the Brexit referendum campaign and subsequently.

Thank you, cabinet secretary. I am afraid that our time was limited and the committee has been under quite a lot of pressure on this legislative consent memorandum, including getting the report back from the Delegated Powers and Law Reform Committee, which has been less than satisfactory. However, we are where we are. I have posed the question and I have not had a response from anyone on the committee, so it appears that we are, in principle, agreed with the LCM. However, there are some questions that we have not managed to ask, cabinet secretary. I do not believe that any member of the committee intends to hold up the process of the LCM, but the clerks will write to you with those questions so that we can have answers to them as a matter of record. That is probably the best way of dealing with things. When the cabinet secretary’s answers come in, they will be circulated to committee members.

Are we content that the committee’s report should recommend that the Parliament agrees to the draft motion as set out in the LCM? I see that we are all agreed.

I thank you, cabinet secretary, and the witnesses for participating in this remote committee meeting. I will suspend the meeting briefly before we move on to allow broadcasting to shuffle the players around on the screen.

10:45 Meeting suspended.  

10:46 On resuming—