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Fisheries Act 2020

Contents

Legal background

Legal background to the Common Fisheries Policy

  1. Article 2(1) of the Treaty on the Functioning of the European Union (TFEU) provides that the EU has exclusive competence in several areas. These are set out in Article 3(1) TFEU and include: -
    • "(d) the conservation of marine biological resources under the common fisheries policy".
    As an EU Member State, the UK therefore does not have competence to act in relation to the conservation of marine biological resources under the CFP. This means that the EU has made most of the law applicable in the UK in relation to fishing and the need for marine conservation in connection with fishing activities. The CFP does, however, provide for Member States to manage their territorial waters (provided they do so consistently with any CFP rules).
  2. Under Article 3(2) of the TFEU, the EU generally has exclusive competence in relation to international matters where it has exclusive internal competence. The EU has entered into a large number of fisheries agreements with third countries and is a member of several RFMOs.
  3. Article 2(2) TFEU provides that in areas of shared competence the Member States may exercise their competence to the extent that the EU has not exercised its competence. The areas of shared competence are set out in Article 4(2) TFEU and include
    • "(d) agriculture and fisheries, excluding the conservation of marine biological resources;
    • (e) environment"
  4. There is therefore shared competence in relation to those aspects of fisheries which do not concern the conservation of marine biological resources, for example, in relation to freshwater fish.
  5. In some areas, the CFP does allow Member States more autonomy. The CFP allows Member States to restrict access to their 0 to 12 nautical mile area to their own boats and the boats of other Member States which have historic fishing rights in that area and to supplement EU measures in their territorial waters, provided they are non-discriminatory and at least as stringent as measures under EU rules. Member States may also enact measures which apply to their own boats fishing outside territorial waters, provided those measures are consistent with the objectives of the CFP, and are at least as stringent as measures under EU law. This allows the UK to apply technical measures to its own boats, regardless of where they are fishing. In emergencies, Member States can also take temporary measures which apply to all boats, not just their own, in waters within their jurisdiction. Such measures have a time limit of three months.
  6. Member States have various other powers. These include stipulating which boats may have their nationality and thus fly their flag; licensing their own boats, allocating quota amongst their own boats; administering aspects of the EMFF, and carrying out various tasks in relation to the common organisation of the market in fisheries products. In addition, Member States play a significant role in the enforcement of the CFP.

London Fisheries Convention

  1. The LFC provides certain EU Member States a right of access for their boats to fish for certain species in certain areas of UK and Crown Dependency territorial waters within 6 to 12 nautical miles from the coast.
  2. It was concluded in 1964, before the UK joined the EU, and before subsequent international agreements (in particular, UNCLOS) established definitively which rights coastal States could exercise in their territorial seas and Exclusive Economic Zones.
  3. The Netherlands, Germany, Belgium, France and Ireland can fish for certain species in certain areas of UK and Crown Dependency territorial waters under the agreement, whilst UK boats have access to certain areas and for certain species 6 to 12 nautical miles from the coast of the Netherlands, Germany, France and Ireland.
  4. The Fishery Limits Act 1964 provided a power for Ministers to give effect to other states’ rights (such as rights under the LFC) of access to fish within British fishery limits (at that time extending to 12 nautical miles from the coast) by making orders designating which countries could fish within these waters. The 1964 Act was repealed and replaced by the Fishery Limits Act 1976, which extended British fishery limits to 200 nautical miles and contained a similar power for Ministers to designate which countries could fish within these new limits. This power was used to provide for access to fish in accordance with the provisions of the LFC. Rights of access under the LFC are also included in Annex 1 to the Basic CFP Regulation (1380/2013), except those rights that relate to the Crown Dependencies.
  5. Article 15 of the LFC permits parties to withdraw from the LFC by giving two years’ notice. On 3 July 2017, as part of the wider process of becoming an independent Coastal State, the UK formally gave notice of its intention to withdraw from the LFC as soon as it ceased to be a Member State. The UK’s participation in the LFC therefore formally ends on 31 January 2020. It will continue to comply with the access arrangements set out in the CFP Regulation until the end of the transition period on 31 December 2020.

UK law relating to fisheries

  1. In addition to EU law derived from the CFP, there are a number of principal pieces of UK primary legislation that relate to fisheries. These are summarised below.
  • The Sea Fish (Conservation) Act 1967 (SF(C)A 1967) contains a number of important provisions which allow the Secretary of State and Devolved Administrations to:
    • prescribe the size limits for sea fish and minimum net sizes;
    • license fishing boats;
    • regulate the trans-shipment of fish from vessel to vessel; and
    • restrict fishing in certain areas and the landing of foreign-caught fish.
    The main licensing orders made under this Act are the Sea Fish Licensing Order 1992 and the Sea Fish Licensing (England) Order 2015. The 2015 Order is a consolidation and applies in relation to England. The 1992 Order continues to apply in relation to Scotland, Wales and Northern Ireland. The orders prohibit unlicensed fishing anywhere by UK fishing boats (subject to certain exceptions).
  • The Sea Fisheries Act 1968 adds to the framework of domestic UK fisheries legislation. In particular it provides that Ministers may make orders regulating the conduct of fishing and makes provision for British sea-fishery officers.
  • The Fishery Limits Act 1976 and designation orders made under it prescribe the fishery limits of the British Islands and the rights of the fishing boats of other countries to fish within those limits. British fishery limits are now, for the purposes of section 1 of the Fishery Limits Act, those limits as designated by the Exclusive Economic Zone Order 2013 which declares the area of the UK’s Exclusive Economic Zone (in effect, the United Kingdom’s 12 to 200 nautical mile area of sea).
  • The Fisheries Act 1981 created the Sea Fish Industry Authority, setting out its duties and powers (including a power to impose a levy on persons engaged in the sea fish industry). It also contains provisions on financial assistance to the sea fish and fish farming industry. It contains a provision making a breach of EU sea fisheries legislation an offence under the Act.
  • The Sea Fisheries (Wildlife Conservation) Act 1992 contains an overarching duty for the Fisheries Administrations and the MMO to have regard to the conservation of marine flora and fauna when carrying out their sea fisheries functions.
  • The Marine and Coastal Access Act 2009 established the MMO. The Act makes the MMO the licensing authority for English boats. It also allows Ministers to delegate functions to the MMO and makes provision for the management of inshore fisheries by IFCAs. The Act sets out the regime for marine planning in the UK marine area and provides for the designation and protection of Marine Conservation Zones. The Act also makes provision for the enforcement of fisheries legislation by Marine Enforcement Officers.

Legal background to the devolution of fisheries

  1. Foreign affairs (including relations with the EU, other countries and other international organisations) is a reserved matter. Observing and implementing international obligations is not a reserved matter.
  2. Subject to very few exceptions, the devolved legislatures and administrations have legislative and executive competence in relation to fisheries and marine conservation in their territorial waters.
  • The regulation of sea fishing in the Scottish zone and the regulation of Scottish fishing boats anywhere are devolved matters.
  • The regulation of sea fishing in the Northern Ireland zone and the regulation of Northern Ireland fishing boats anywhere are devolved matters. In Northern Ireland, the foreshore and seabed are excepted matters.
  • The regulation of sea fishing is devolved in the Welsh inshore area, but Senedd Cymru does not currently have legislative competence in relation to fisheries in the Welsh offshore area. Fisheries is not reserved under Schedule 7A to the Government of Wales Act 2006, so is devolved where provisions can be said to relate to Wales (which includes the inshore area). Welsh Ministers do have executive competence in relation to fisheries in the offshore region.
  1. Subject to certain exceptions, the Devolved Administrations have devolved competence in relation to marine licensing in their inshore area and the Scottish Ministers and the Welsh Ministers have executive competence in relation to marine licensing in respect of their offshore area.
  2. The Devolved Administrations have executive competence in relation to marine planning in their offshore area as well as competence over marine planning in their inshore area.

International law: the United Nations Convention on the Law of the Sea, the United Nations Fish Stocks Agreement and Regional Fishery Management Organisations

UNCLOS

  1. UNCLOS is the main international agreement governing the World’s oceans and seas. The UK is a party to UNCLOS in its own right. UNCLOS covers a number of significant issues including setting limits for territorial waters and EEZs, navigation, archipelagic status and transit regimes, continental shelf jurisdiction, deep seabed mining, the exploitation regime for fish stocks, protection of the marine environment, scientific research, and settlement of disputes. In relation to fisheries, UNCLOS recognises a coastal State's rights and obligations with respect to fishing in its territorial sea, its EEZ and on the high seas.
  2. The territorial sea is a zone extending up to 12 nautical miles from a coastal State’s baselines (generally the low-water line along the coast). The coastal State’s sovereignty extends to its territorial sea. The coastal State’s sovereignty over its territorial sea is to be exercised in accordance with its international obligations, including obligations under UNCLOS (for example, to provide innocent passage to boats from third States).
  3. The EEZ is a zone extending from the outer limit of the coastal State’s territorial sea to up to 200 nautical miles from its baselines or to the median line with another coastal State's EEZ. Within the EEZ, the coastal State enjoys exclusive rights in relation to natural resources and related jurisdictional rights.
  4. Within the EEZ, the coastal State has "sovereign rights for the purpose of exploring and exploiting, conserving and managing" the fish stocks of the zone (UNCLOS, Article 56(1)). These rights are subject to a number of duties under UNCLOS, including the need to:
  • determine the total allowable catch of the living resources in the EEZ – Article 61(1);
  • maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield – Article 61(3);
  • optimise utilisation of the living resources within its EEZ, without prejudice to Article 61 – Article 62(1);
  • determine the coastal State’s own capacity to harvest those living resources – Article 62(2);
  • provide other States with access to any surplus if the allowable catch exceeds the coastal State’s own capacity to harvest the living resources – Article 62(2);
  • provide due notice of conservation and managements laws and regulations relating to living resources of its EEZ – Article 62(5); and,
  • cooperate with other Coastal States upon measures necessary to coordinate and ensure the conservation and development of shared stocks - Article 63.
  1. Where coastal States allow access for fishing boats from other States to their EEZ, the coastal State can prescribe conditions to govern such fishing. Article 62(4) of UNCLOS provides that these conditions may, for example, require foreign fishers to have licences, to observe the coastal State’s conservation measures, to provide information including catch and effort statistics and vessel position reports, to carry out research programmes, to land part or all of their catches in the coastal State, to carry on-board observers, to train coastal State personnel, and to comply with enforcement procedures.
  2. The rights and duties of other States in the coastal State’s EEZ are set out in Article 58 of UNCLOS. Other States’ rights include (i) the freedom of navigation, (ii) the freedom of overflight, and (iii) the freedom to lay submarine cables and pipelines. Other States must have due regard to the rights and duties of the coastal State and comply with the laws and regulations adopted by the coastal State adopted in accordance with UNCLOS and other rules of international law.
  3. Whilst the overwhelming proportion of commercial fishing takes place within 200 miles of land, UNCLOS also contains provisions governing fishing on the high seas (i.e. beyond 200 miles) where many fish stocks spend part or the whole of their life cycle. UNCLOS provides that fishing is, in principle, open to all States on the high seas, subject to a number of general obligations relating to the conservation and management of high seas living resources (set out in Articles 117 to 120). These include the obligation to cooperate to establish RFMOs to this end.
  4. UNCLOS includes a bespoke dispute settlement mechanism. When a dispute arises, parties to UNCLOS are under a general obligation to settle the dispute by peaceful means (Art 279). Parties must proceed expeditiously to an exchange of views regarding settlement by negotiation or other peaceful means (Art 283). If parties fail to reach a settlement through agreed procedures, one may invite the other to submit to the conciliation procedure laid out in Article 285 and Annex V. There are compulsory dispute resolution mechanisms provided by section 2 of Part XV of UNCLOS, which are engaged where settlement of a dispute is not possible by a means freely chosen by the parties, but there are exceptions to this compulsory procedure for fisheries disputes relating to a coastal State’s sovereign rights relating to the living resources in its EEZ, including its determination of the TAC and harvesting capacity, its allocation of surpluses to other States and its conservation and management laws.

UNFSA

  1. UNFSA is a multilateral treaty intended to ensure the long-term conservation and sustainable use of straddling fish stocks (stocks which migrate between, or occur in both, the EEZ of one or more States and the high seas such as mackerel, herring and whiting) and highly migratory fish stocks (stocks listed in Annex 1 of UNCLOS which are capable of migrating long distances and which generally occur in both EEZs and the high seas) through effective implementation of the relevant provisions of UNCLOS (UNFSA, Article 2). In order to achieve this objective, UNFSA sets out various principles for the conservation and management of these stocks by the coastal state within its EEZ, and by the coastal State and other states on the high seas. The UK is currently a party to UNFSA in its own right.
  2. Part III of UNFSA contains detailed provisions on the implementation of Articles 117 to 120 of UNCLOS. This includes provision on the establishment and functions of RFMOs and duties of States to cooperate with them (Articles 8-17). In particular, States fishing for stocks managed by a particular RFMO on the high seas and the relevant coastal States must either join that RFMO or agree to apply the conservation and management measures adopted by the RMFO (Article 8(3)). UNFSA also imposes duties on States to implement and enforce conservation and management measured adopted by RFMOs.

Regional Fishery Management Organisations (RFMOs)

  1. As envisaged by UNCLOS and UNFSA, a large number of RFMOs have been established by coastal States and States fishing on the high seas. RFMOs are established by multilateral treaties and are intended to strengthen regional cooperation in order to promote conservation and sustainable exploitation of fish resources on the high seas, straddling stocks and highly migratory species. While some RFMOs have a purely advisory role, most have management powers to set catch and fishing effort limits, technical measures, and control obligations in order to establish measures for the control and monitoring of fishing activities. The EU is a member of 17 of these organisations. The EU’s exclusive competence in this area means that the UK is currently a member of only two RFMOs on behalf of a number of its overseas territories.
  2. From 1st January 2021, the UK will join a number of RFMOs in its own right and will be bound directly by the conservation and management measures adopted by these RFMOs as a result.

Retained EU law

  1. The directly applicable EU regulations of which the CFP is comprised will be retained in UK law under the European Union (Withdrawal) Act 2018. The Department has made a number of statutory instruments to correct retained EU law relating to fisheries to make it operable in UK law.
  2. Schedule 11 also makes a number of policy changes to retained EU law that are consequential on provisions in the Act.

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