Chief Executive : Peter Winterbottom

MarineBillreplyJune07

17 May 2007

Marine Bill Team

Marine Legislation Division

DEFRA

Area 2E

3-8 Whitehall Place

LONDON SW1A 2HH

1. The Association of Sea Fisheries Committees of England and Wales represents the 12 Sea Fisheries Committees managing inshore waters out to 6 miles from the points where baselines are drawn. The Committees’ authority is drawn from the Sea Fisheries Regulation Act 1966. They work with both DEFRA and the Marine and Fisheries Agency but are not part of either. They are joint committees of local authorities and persons having knowledge of inshore fishing including recreational sea angling and marine nature conservation. The Fisheries Departments of the Isle of Man, Guernsey and Jersey are Associate members of the Association.

2. This response is made following a plenary meeting of the Association held on 2 May 2007. It will be followed by a further response concentrating on 'New Burdens' and their financial implications. DEFRA should expect individual Committees and their local authority sponsors to have political comment to make on the proposed size of the new Committees and linked operational problems that can be identified at this stage. These are all touched on below particularly in paragraphs 18 and 19.

3. We note that in the White Paper ‘Marine Planning’ means undertaking forward – looking activities to create policy statements or plans and that it does not mean ‘development control’ as on land. We welcome this clarification and on that basis can welcome the concept of a strategic marine planning system. We note the subsequent remarks on proportionality.

4. The Sea Fisheries Committees will have information (c.f. paragraph 4.64) to contribute to this broad process and views on the emerging plans. They will also need to be seen as a primary source of information and knowledge for the marine planning steering groups mentioned at paragraphs 4.102 et seq. This is recognised at 4.104. The Sea Fisheries Committees are already involved in aspects of strategic planning. Two current examples are that most of the Committees are now building an information base about current fishing patterns using GIS methodology and the North Eastern Sea Fisheries Committee have responded positively to DEFRA’s request for a pilot SEA project. A steering group has been set up and some work commenced. Funding is currently being sought from DEFRA, the Sea Fish Industry Authority and others.

5. Given that licensing decisions will have to be made in the context of marine plans (5.35) to whose production the Sea Fisheries Committees will have contributed, it appears that the interests of inshore managers have been recognised. This is welcome.

6. We also welcome the recognition that most (current) conservation tools were designed primarily to address terrestrial needs. It follows that we welcome all attempts to build a suite of relevant and effective measures that are fit for marine purposes and we have knowledge to contribute including socio-economic knowledge. We would welcome further amplification of the criteria for the selection of a network of MCZs, as the guidance listed in bullet points in 6.31 – 6.39 are ambiguous. To fulfil the criteria listed in the bullet points in 6.31 could potentially lead to the designation of the majority of the inshore zone out as far as 6 nautical miles from the points where baselines are drawn. As described below this is the only area in which suitable and proven powers exist to ensure effective management of any MCZ network.

7. As managers the Committees need to be told how, in practice, any MCZ site more than 6 miles offshore from the points where baselines are drawn can be protected on a national legislative basis. In practice we understand that they cannot be protected from international fisheries without a CFP Regulation to do so – and it remains to be seen to what extent, if any, Whitehall is prepared to pursue the route available through Article 9 of the Basic Fisheries Regulation (Council Regulation (EC) 2371/2002) or the European Commission is prepared to take proposals to the Council of Ministers for national as distinct from Community interests. Until this point is clarified national conservation areas outside 6 miles can only be aspirations and once it becomes clear that protection of such designated sites is ‘difficult’ there is a real danger that this new process of national MCZs will fall into disrepute. This must not be allowed to happen.

8. The same considerations, though different in detail, apply to other international activities including navigation.

9. But given that a new range of protected sites is designated they must be managed to secure the intended effects of the designation. This is the one thing that SACs or SPAs do not bring with them. Individual sites may have a management regime. But as required by the transposing legislation all involved with these areas ‘manage’ only to the limited extend that they need to do so. Such overall management groups as are in place are in our experience largely ineffective and duplicate the use of resources to a considerable extent. There needs to be one manager – we suggest the MMO - charged with responsibility for the site and working with other relevant agencies in contrast to what is suggested at 6.62 of the White Paper.

10. We note 6.77. We also note that the first bullet point of that paragraph does not give the full picture. Both before this White Paper and after the enactment of what is proposed for the Marine Bill, DEFRA (in England through the M&FA) remains responsible for licensing fishing vessels and thus is competent to vary or revoke those licences to afford protection from fishing within designated areas. We note that even after the ECJ’s Waddensee Judgement there is no appetite to do so. As a result the available suite of powers to provide the level of protection required by agreement at government level is needlessly weakened.

We question whether giving MMO enforcement officers (6.175) a suitable suite of powers for the enforcement of marine nature conservation legislation without giving Sea Fisheries Committee Officers the same powers is sufficient. It is the Sea Fisheries Committee officers who patrol the inshore area both by land (particularly where hand gathering of shellfish or half tide nets are established practice) and by sea. It is pointless expecting those officers to alert MMO to alleged infringements of marine nature conservation legislation and then wait for MMO to deploy its resources. If designation is to be effective, it is essential that Sea Fisheries Committee Officers have the power to take enforcement action. The public will not understand that there are two sets of enforcement officers (or three if Environment Agency is brought into the equation or four if Local Authority foreshore officers are brought into the equation). With good reason the public expects the person on the spot to do what is needed.

12. Based on a report by the Institute of Estuarine and Coastal Studies bait digging has been identified in the White Paper (6.130) as an unlicensed activity that needs regulation. The next paragraph then records that this activity is very localised. The report seems to have taken no cognisance of the Natural Environment and Rural Communities Act 2006 which amends Section 28P of the Wildlife and Countryside Act 1981. In doing so it creates an offence of intentionally or recklessly damaging flora, fauna etc. by reason of which a site of special scientific interest was designated, provides a statutory defence and prescribes a penalty.

13. It is very important that central government gives proper weight to proportionality in dealing with bait digging and indeed all other activities that the White Paper brands as unlicensed. In the case of bait digging statute law has already limited the common law right to take bait for fishing in designated areas as explained above. In all other areas the question to be asked is does bait digging matter? If it does then the next question should be does the site warrant listing? If the answer is ‘yes’ then the remedy is obvious. If the answer is ‘no’ then why are the District Councils’ existing powers to control bait digging and human safety issues that may be connected – such as leaving trenches open on a beach – not sufficient to control the problem? The real answer is probably that the subject does not have sufficient importance in the real scheme of things for the District Councils to allocate more than token resources.

14. The same point will arise if the Sea Fisheries Committees are given powers to invade District Council territory to control bait digging. No foreseeable transfer of funding from Central Government to Local Government will provide the staff numbers to patrol beaches effectively to check on unlicensed bait digging. The system will thus fall into disrepute, be ignored and prove to be yet another instance of the overregulation that the Government wishes to stop.

15. At the very least this needs discussion between the parties concerned before legislation is decided upon to control this or any other 'unlicensed' activity.

16. This Association has argued for a number of years for effective modern powers to replace the Victorian ones under which the Sea Fisheries Committees currently operate. It is very welcome that those County or Unitary Authorities with a sea or estuary coastline will be ‘locked in’. Given that there is a strong desire to see Sea Fisheries Committees manage recreational sea angling we ask that inland as well as coastal local authorities contribute to SFC funding. After all, anglers and others who benefit from inshore conservation are not restricted just to the coastal counties. Nonetheless, we give a broad welcome to the proposals outlined in this section of the White Paper.

17. However we draw attention to these points:

18. There are concerns that it is proposed to limit the size of Committee to 15 members. It is the case that very large numbers of members can be difficult to handle from the Chair if all views are to be represented fairly. But sight must not be lost of the fact that these are representative bodies and there is a firm link between the number of representatives and the area of the Sea Fisheries Committee District. It may be that more, smaller, Sea Fisheries Committees are required rather than fewer larger ones as is suggested at 7.26. Effectiveness may not be dependant on large size – the more so as the fisheries and nature conservation representatives are particularly valued for their detailed practical knowledge of the area. We welcome the proposal that members are to be appointed in line with the Code of Practice for Ministerial Appointments to Public Bodies (7.28).

19. Local Authorities are bound to have concerns that their Councillor membership will be reduced to one third of the Committee despite it being proposed that only the LA element of the Committee is authorised to set the budget. Practical problems with 15 members certainly include there being insufficient members to allow an appeal panel to be constituted from members that have not voted on the main issue; the difficulty of establishing sub committees from a small base number of members; and the difficulty of examining prejudicial interests before a Committee that may have lost its quorum! A starting point of 21 members on a Committee might be a more realistic figure and this gives 7 places to the Councils and a couple more to the fishing interests. We have heard from officials that a system of certain Councils representing other Councils on internal drainage boards is effective. We are told by Councillors that far from having settled down and become effective it is just not working and that there are real concerns about the legality of one Council setting a precept or levy on another Councils funds. 'No taxation without representation' remains an essential element of good governance and must not be abused. DEFRA also needs to provide in legislation for the eventuality that the Councillor members are not able to set a budget for political or other reasons which may well be exacerbated by the need to represent other authorities' views. If this scenario was to occur the Committee would be unable to function legally. This would frustrate the government's inshore management system in a particular District and may well also prevent the delivery of international obligations.

20. The Association will engage with the Committees to work on matters of common interest (7.30) to the general advantage of inshore managers and management and welcomes the undertaking (7.31) that DEFRA will ensure that all reasonable costs are met from the general expenses of the Committees. We have mentioned above the need to improve on the general approach to common form byelaws including more modern consultation processes but ones relevant to the task in hand. In this regard we acknowledge that a form of Regulatory Investment Appraisal may well be appropriate – but it has to be fit for purpose. A byelaw does not have the same effects as a national Statutory Instrument and the compendium of information now being complied to substantiate an SI is not necessary in the Committee’s circumstances. We will work with DEFRA to agree on a suitable arrangement.

21. We have made some remarks above about size of Committees and of Districts. Paragraph 7.65 postulates that the present 12 SFCs might be reduced to 6. This is a speculative number. We await detailed consultation with DEFRA on this. However, any final determination must address such considerations as :

22. A change of name may well be appropriate to mark the reform of SFCs. It will, of course, bring re-branding costs with it. Our strong preference, as put to Bradley, is ‘Inshore Fisheries and Environment Authority’.

23. We welcome the proposal to reduce the likelihood of applications requiring public enquiry and other proposed changes. We would like to see clarification of the powers in the Sea Fisheries (Shellfish) Act 1967 to set TACs and more clearly provide adequate management tools including. This would ensure that there are clear powers, for example, to open and close shellfish beds, control fishing operations, ingress and egress to the site(s) whether by vehicle or on foot and require operational and landing data. It would be preferable (paragraph 7.98) for licences to be granted only to individuals rather than to corporate bodies. The revised legislation also needs to put beyond doubt the rights that landowners have or retain in respect to the land over which a Several or Regulated Order is granted. The Courts may add clarity to this in the Judgement expected this autumn on the Gallows Point case in Anglesey.

24. The proposals for Several Orders prompt a number of questions. We would like to see provision for greater flexibility and the ability to differ between classes of licence for different methods of fishing so that an individual may have a right to fish by only one specified method. Perhaps not unexpectedly we have very serious concerns regarding policing of private and several fisheries. Giving the Sea Fisheries Committees powers to enforce if asked to do so is one thing (7.85). It is also important to make plain on the face of the legislation that the Committees may or must charge for this service. We would welcome debate on this subject.

25. We agree that additional funding will be required for SFCs to make significant improvements in the services to anglers. Some elements of this work seem likely to be labour intensive. Within the national RSA strategy (which is expected to be the subject of consultation later this year) there is clear recognition that the Sea Fisheries Committees ought to have a clear role in the management of recreational sea angling. It is essential that a sufficient portion of the licence fee is directed to the Committees to offset the costs of managing and enforcing this activity. As the development of this policy continues we expect DEFRA to involve us and the EA closely. Please also see our remarks about other forms of non commercial fishing at paragraph 27.

26. We are engaged with DEFRA on the introduction of administrative penalties for CFP offences (7.135 et seq). We will engage about other uses of administrative penalties as they are developed (c.f. 7.35). We record that we have already made the point to DEFRA that this is a new burden on the financial resources of the Committees in that they will lose costs that the Courts have hitherto awarded.

27. We welcome the ideas for a coherent suite of BSFO powers (7.143 et seq and 7.47). These powers and the legislation that underpins them and the whole of fisheries management must make sure that all fishing can be managed and controlled whether commercial or recreational, whether from boats or vehicle or on foot, whether by net or trawl, by rod or line or hand line, by diving by any means whether to spear fish or to collect shellfish. It would be quite invidious to impose the weight of the law just on commercial fishermen and recreational sea angling.

28. We acknowledge that a Marine Management Organisation as described in section 8 of the White Paper will bring benefits to the management of the marine environment.

29. The relationship between the MMO and the Sea Fisheries Committees still needs to be considered in depth. In particular as the MMO will, in practice, be seeking to deploy SFC assets it is appropriate for the SFCs to be represented on the MMO’s sponsorship group.

The new arrangements for SFCs described in the White Paper mean that central government will impose new burdens on those local authorities which will fund the SFCs. A transfer of funds will therefore be required from central government to local government in accordance with the Public Expenditure rules. We think that the net figure of £1.7m per year quoted at paragraph 12 on page 86 of the Partial Regulatory Impact Assessment is a welcome recognition by Government of the potential costs associated with the new burdens for SFCs. The build up of this figure needs to be discussed in detail as the full extent of the burdens becomes clearer. We are currently exploring this and will be in touch with DEFRA about our conclusions. We note for 7.57 that the power to charge other authorities for services rendered is proposed. We would like clarification that this general formula would include MMO. We would welcome detailed discussions on this and on the scale of the burdens themselves before a cash transfer from central government is finalised.

We are keen that robust mechanisms are in place to ensure funds from central government destined for the inshore management function actually reach their intended Sea Fisheries Committee. We were glad to hear from officials on 2 May 2007 that they were still pursuing this within Whitehall. A number of Councillor members of Committees have voiced the opinion that it is not likely that the Sea Fisheries Committees will see the new money intended for them unless it is clearly identified in the rate support mechanism as being exclusively for the Sea Fisheries Committees. Experience in Wales, where this sort of arrangement is already in place, is that it works.

I am copying this letter to Rodney Anderson, Dave Bench, Trevor Hutchings, Nigel Gooding in M&FA and Glyn Perryman in WAG

Yours sincerely,

p.p. Peter Winterbottom

Chief Executive

Top