Official Report: Minutes of Evidence

The Chairperson (Mr Irwin): I welcome John Terrington, Mark McCaughan, Paddy Campbell, Seamus Connor and Liam Devlin. You are very welcome back. I ask you to give us your brief, and then we will ask questions.

Mr John Terrington (Department of Agriculture and Rural Development): Thank you, again. I do not suppose that I need to reintroduce the people at the table here.

We would like to begin by again noting the importance of the Bill's clauses in ensuring that we continue to comply in the longer term with EU legislation across inland and sea fisheries and ensuring that enforcement powers remain effective and proportionate. We also note that both Ministers would of course prefer that all, or at least most, of the Bill's provisions were taken forward sooner rather than later.

As we mentioned last week, the permit powers in clause 1 would allow us to ensure that fishing activity could continue where restrictions, such as those imposed by marine conservation zones (MCZs), for example, might otherwise prohibit it. The same is true for the amendments to the licensing rules under section 4 of the Sea Fish (Conservation) Act 1967 as contained in clause 3. The powers of enforcement in clauses 4 and 5 and the proposed increase in penalties in clauses 7 and 8 would help us to avoid further criticism from the European Commission for having insufficient powers or, indeed, inadequate deterrents. The powers in relation to inland fisheries in clause 10 would ensure compliance with the EU services directive. The changes that are set out in clauses 11 to 13 would help DCAL to meet obligations under the water framework directive. The fixed-penalty-notice powers in clauses 14 and 15 would help us to improve compliance, allow people to avoid the stigma of a criminal record where appropriate and, in general, allow enforcers to concentrate on the most serious offences. These, as with the permit powers at clause 1 — by far the largest clauses — are enabling powers. Of course, we would come to the Committee again with detailed subordinate legislation in time, and before they have effect.

All these things are important in their own right and would future-proof aspects of the legislation, avoid future criticism and ensure that legislation on these aspects remains fit for purpose, but, as the Minister has said in her letter, which I understand you received this morning, she recognises that the Bill has come to the Committee late in the day and the Committee's offer to help to ensure that the most urgent clause, in particular, can come into law and remove the threat of infraction in the short and the longer term. Therefore, given the urgency and importance of what is currently in clause 9 of the Bill, she is content that we seek a way in which to deal with this matter. To deliver this, consideration has been given to dealing with it via subordinate legislation. However, while this could help to implement the specific EU control regulation that was the specific subject of omission earlier this year, it is clear that the underlying problem would remain and that the Commission would remain unhappy that we could not directly enforce all EU fisheries legislation immediately when it comes into operation, as it would expect us to.

Furthermore, given the potential size of the subordinate legislation to implement the control regulation, it is difficult to see how this might be brought forward in a timetable that would satisfy the Commission. As the Minister notes in her letter, even if this piece of subordinate legislation could be brought forward in a timetable that was agreeable to the Commission to allow it to suspend further action, EU legislation is continually being introduced and updated. The Commission would be aware that the underlying problem still existed, and we would continue to live under the threat of EU action. In order to avoid further action, any new fisheries regulations would have to be implemented speedily. Even then, this would not impact on the immediate application of EU law that I have said the Commission believes should be the case. Given the amount of legislation in this area that is on the horizon, it is likely that any short-term fix will serve only to store up problems further down the line.

With respect to any proposal to start again with a new Bill, there is concern that having to seek Executive approval for introduction and get the agreement of the Assembly on a motion to agree to the accelerated passage of a new, smaller Bill might in itself be risky. With a Bill already in the Assembly that can deal with this matter, it may be better to seek to progress it rather than start again at this late stage. The Minister could then progress at Consideration Stage only those clauses that the Committee is content that it has had time to thoroughly consider and with which it is entirely content. For the Committee, this might be only clause 9, if that was its will.

In conclusion, the legislation is important. It allows us to meet EU requirements to be able to directly enforce the common fisheries policy (CFP) and to demonstrate to the EU that we have adequate enforcement powers, sufficient deterrents to offending and adequate penalties for those who do offend. It ensures that DCAL can meet obligations under the EU services directive and the water framework directive. As noted, we recognise the limited time that is available in the mandate for the legislation to become law. We are happy to take any further questions that you might have at this point.

The Chairperson (Mr Irwin): Thank you very much for your presentation. The EU Commission is unhappy that we cannot directly enforce all EU fisheries legislation immediately. Does this happen in England, Scotland, Wales and the Republic of Ireland? Do those regions have the ability to enforce all EU fisheries legislation immediately?

Mr Terrington: My understanding is that it is just us.

The Chairperson (Mr Irwin): Just us?

Mr Terrington: Yes.

The Chairperson (Mr Irwin): Why is that?

Mr Terrington: A change was made in English legislation in the past to allow it. We have the same legislation across the UK. I cannot speak for the Republic; their legislation is clearly OK as it is. The piece of legislation that we use in Northern Ireland is the same piece of legislation that covers across the UK. It was amended by England in 2009, and latterly by Scotland in 2013-14. It was at that point that we realised that perhaps we needed to do something about it and included that in the proposals to bring forward legislation. If it ever did come to the issue of EU action, it would fall on Northern Ireland to deal with it within any case that it would take against the UK.

Mr Swann: To start, I just want a point of clarification, John. You referred to clause 9. Is it clause 9 or clause 6?

Mr Terrington: Clause 6. My apologies.

The Chairperson (Mr Irwin): I noticed that, too.

Mr Terrington: At least somebody has read the Bill. [Laughter.]

Thank you, Mr Swann.

Mr Swann: No problem. It was just in case you were trying to slip something else through. [Laughter.]

The Chairperson (Mr Irwin): Have any other members any questions?

Mr Terrington: I have trouble reading letters the right way up.

The Chairperson (Mr Irwin): Did you look at them upside down?

Mr Swann: I know that parts of the provisions of the Bill are between us and the CAL Committee. Is there anything to stop the CAL Committee from taking forward some of its parts?

Mr Seamus Connor (Department of Culture, Arts and Leisure): No. We met the CAL Committee last week, and I emphasised that these are key areas for us. On the fixed-penalty issue, we have people now who are being prosecuted for a minor offence, such as using sweetcorn in DCAL waters. The alternative of a fixed-penalty notice rather than prosecution is obviously advantageous; it does not give people a criminal record.

Under the EU services directive, we are required to have the process for applications online. That system is now online. The impediment is that people from outside have to seek approval from a justice of the peace before the application is finalised. That does represent a break in the online system.

The stuff around protection of fish is also very important. The rigid rules currently in place do not give any protection at all to eels. The research that we have done in the Agri-Food and Biosciences Institute (AFBI) indicates that the mortality rate is likely to be in the region of 15% to 30%. That is a very key species for us. We have EU management plans in place to protect those species, and it is critical that we get the protection, particularly at hydro sites, for those species.

We see the number that we have going through the CAL Committee as being fairly simple, we hope — from our perspective, anyway. We are certainly happy to answer any questions that the Committee has in respect of them, and we hope that these also will proceed during this time.

Mrs Dobson: I apologise for missing your briefing. I have read through it — maybe not in as much detail as Robin Swann, but I have gone through it. I know that you may have covered this in your introduction, but can you maybe explain why, when the EU Commission ordered a pilot scheme back in July, we did not have legislation coming through to us until December?

Mr Terrington: The Commission was here in January and noted that. Its formal report came in July. We told it at the time that we had a fix — the fix was this Bill — and that the Bill timetable would take us through to the end of the mandate. Unfortunately, drafting of the Bill took longer than we could have anticipated, as well as getting the necessary clearances to get to where we are now.

Mrs Dobson: I note that the Minister said that clause 6 in particular was extremely important. I just wondered at that delay. Given, then, that the consultation on the Bill took place towards the end of last year, and there were 57 responses, do you feel that you should gauge industry views again, or are you satisfied that that is —

Mr Terrington: It is worth saying — I am not putting my colleagues on the spot — that the vast majority of the responses were in relation to inland DCAL fisheries matters and that, in response to the consultation and other matters, my colleagues amended what they required. For the most part, what they have included in the Bill will present no great difficulties, we would have thought, for stakeholders. Similarly, we are constantly in discussions with our own and genuinely do not think that there is anything major in what has been provided, given the support generally for the proposals, that will cause any great difficulty to our stakeholders. Clearly, they will want to have a look at the detail and, depending on the outcome of this and the Committee's view, we are keen to write to them and at least let them know that it is out there and let them see the detail.

Mrs Dobson: You have done your best with the high level of detail.

Mr Terrington: For the most part, we tried to set that out in the consultation, knowing that, when you get down to the drafting, there are details that you maybe do not reflect on in that sense at consultation, but we think that generally there is nothing in the legislation that was not covered as best we could at a high level during the consultation.

Mrs Dobson: Is there a danger that, if we have an emergency issue with the threat of infringement, which this Bill attempts to deal with, we are maybe seeing an attempt to have a whole raft of other issues dealt with as well? Can you provide the Committee with evidence that you are bringing the industry with you in this Bill?

The Chairperson (Mr Irwin): We have already had legal advice. We are looking now at the possibility of just moving one clause in the Bill. That was before you arrived.

Mr Terrington: As I said, the commitment is certainly there. If you only get the chance to look at the one, so be it. I have set out that the others will remove the opportunity. With some of them, the position is that we are back trying to force things through in a big hurry to avoid further conversations about the urgency of bringing forward legislation, including the penalties and the DCAL issues.

Mr Milne: Have you had any correspondence from Toome Eel Fishery, say?

Mr Connor: Yes, we have consulted very widely on these DCAL issues. These are right up with its priorities as well. The protection of a lake, for example, and, obviously, the things around screening and the protection of eels are very important. Under the EU directive, we are required to have 40% escapement for silver eels. It is critical that every part of the whole catchment meets those requirements. We are trying to get as many eels through as possible. That is the intention of our provision for the 10-millimetre screen. It is to ensure that we are protecting eel stocks, and that is currently is not there. We have a grating size of 5·1, and scientific advice suggests that, depending on the angle of the screen, we should have it maybe as low 9 mm. We have gone for 10 mm as a kind of worst-case scenario for a vertical screen, but obviously we have exemptions in place as well so that, if there are better conditions there and the operator puts those in, they do not have to comply with the legislation. We can offer an exemption, and we have had a number of operators coming through beforehand asking for advice about sites that they are going to develop. When have advised that we are seeking a 10-mm screen, we have received no adverse comments from them, as long as they know in advance that it only applies new sites coming in. They can then cater for that.

Screening is always in place at an intake, to prevent debris and stuff like that. Obviously, under the current Act, they have to put a fine mesh screen or cover over that for a certain period of time. We are just saying that we now need this for a longer period because we have other species to look after, such as lampreys and eels in particular. There is a lot more movement than people originally will have thought.

The Chairperson (Mr Irwin): Thank you very much.