The Fisheries Bill is still at an early stage in its voyage to enshrinement in law and will be subject to several rounds of scrutiny and possible amendment. For now, however, some clear themes can perhaps be established and conclusions drawn on what may be on the horizon for Scotland's fisheries and fishing communities.
Following on from our initial comment from the day that the Bill was first introduced into parliament, we take a closer look at what the Bill might mean for Scotland's fishing industry.
Access to Scottish waters
As was heavily publicised at the time, the Bill makes clear provisions that the UK will leave the Common Fisheries Policy (CFP) at the end of the Transition Period (being 31 December 2020). This means that the automatic right of EU vessels to fish in British waters will essentially be revoked from that date.
The Bill provides, at section 12, that foreign fishing vessels must not enter British fishery limits – except where the foreign vessel holds a valid "sea fishing licence" and is operating in accordance with the purpose of that licence, or where the vessel has entered the British fishery limits for a purpose that is recognised by international law or by any international agreement to which the UK is party.
So what are the implications for Scotland's waters?
Under the Bill, the Scottish Ministers are listed as a "sea fish licensing authority" and have been provided with wide ranging powers in relation to sea fish licences. These powers are detailed in Schedule 3 of the Bill, and include the power to attach conditions to any sea fishing licence as appear necessary. In particular, the Scottish Ministers have the power to impose conditions/restrictions on the granting of any sea fishing licence, in relation to:
- the port at which catches are to be landed;
- the use to which fish caught may be put;
- the time that vessels may spend at sea; and
- conserving or enhancing the marine and aquatic environment.
As a sea fish licensing authority, the Scottish Ministers can also vary, suspend or revoke any sea fishing licence (or condition attached to it) from time to time, where it appears necessary for the regulation of fishing or where there has been a breach of the licence.
Where the Scottish Ministers have granted a sea fishing licence to a foreign vessel, the licence will not authorise fishing anywhere outside of Scotland and the "Scottish zone". Similarly, licences granted by the Welsh Ministers or by the Northern Ireland department will only authorise fishing in their respective areas/zones. As it stands then, this means that the Scottish Ministers will be in control of the number of foreign vessels that are authorised to fish in Scotland and the Scottish zone.
Penalties for foreign vessels that commit an offence and contravene the provisions of the Bill include; substantial fines, the imposition of disqualification periods for vessels, and also the forfeiture of any fish caught, or any net or fishing gear used, in respect of the offence that was committed.
The "Fisheries objectives"
Whilst a considerable amount of media coverage relating to the Bill has focused on the future access to UK waters, it also became immediately clear that the Bill would place high importance on the long term sustainability of British fisheries, with the Bill containing several provisions relating to fisheries management generally.
Section 1 of the Bill outlines the fisheries objectives, listing "the sustainability objective" as a main objective of the Bill (along with other objectives such as "the precautionary objective", "the ecosystem objective" and "the climate change objective").
The sustainability objective is that:
"(a) fish and aquaculture activities are (i) environmentally sustainable in the long term, and (ii) managed so as to achieve economic, social and employment benefits and contribute to the availability of food supplies; and
(b) the fishing capacity of fleets is such that fleets are economically viable but do not overexploit marine stocks."
In furtherance of achieving the fisheries objectives, the "fisheries policy authorities" (which includes the Scottish Ministers) are required to prepare and publish a "joint fisheries statement" which will:
- set out the policies of the fisheries policy authorities for achieving, or contributing to the achievement of, the fisheries objectives;
- explain the use of fisheries management plans in order to achieve, or contribute to the achievement of, the fisheries objectives; and
- explain how the fisheries objectives have been interpreted and proportionately applied.
Following the publication of such a joint fisheries statement, a fisheries management plan will be proposed by the fisheries policy authorities that must detail, among other things, the ways in which the specified fish stocks and geographical areas are to be managed, and the measures necessary to be implemented in order to determine the effectiveness of the management plan overall.
In addition to this, section 23 of the Bill provides that the Secretary of State has the power (in certain circumstances and after consultation with other relevant bodies, including the Scottish Ministers) to determine "fishing opportunities" for a calendar year, being:
- the "Catch Quota" – being the maximum quantity of sea fish that may be caught by British fishing boats; and
- the "Effort Quota" – being the maximum number of days that British fishing boats may spend at sea.
The quotas can be determined (i) for different descriptions of sea fish, (ii) for different descriptions of fishing boat, and (iii) for different areas of sea. This determination of quotas, however, can only be exercised by the Secretary of State if exercised in order to comply with an international obligation of the UK to determine the fishing opportunity of the UK. The impact of such a provision therefore remains to be seen.
While it remains to be seen how the Bill will translate into reality and integrate with industry generally, we can draw some early conclusions from its current state. As touched upon, sustainable fishing looks to be a central consideration in the navigation of the seas of change ahead. This is perhaps hardly surprising given the increasing focus on climate change and achieving climate and "zero carbon" goals.
The Bill's publication was also rather timely, coming just days after the publication of the January edition of a new journal (One Earth), which contained a study titled "Blue Acceleration: The Trajectory of Human Expansion into the Ocean". As the name suggests, the study was based on the ever growing demand being placed on the ocean as humanity looks for alternative food, resources and space, with a particular focus on how we can look to steer this demand in a way that is sustainable and equitable. The study, which analysed 50 years' worth of data, concludes with a suggestion that safeguarding ocean sustainability in this time of rapid change can be achieved through the efforts and activities of governments, corporations and civil society.
Whether the Bill and subsequent legislation act as a safeguard for ocean sustainability from a UK perspective remains to be seen, but there are tangible signs that the tide may be changing.