Official Report: Minutes of Evidence

The Chairperson (Ms D Armstrong): I welcome the Research and Information Service's (RaISe) officers to the meeting and invite them to brief the Committee on their research paper and review-of-cost paper. We will then have one question and answer session for both papers. Mark Allen, Suzie Cave and Nathan Mulholland, you are very welcome. I invite you to brief the Committee.

Mr Mark Allen (RaISe): Thank you, Chair and Members. I will kick off, then I will hand over to Suzie, who will hand back to me, and we will then hand over to Nathan. After that, we will take the Committee's questions. Thank you for your patience: we have quite a bit of ground to cover. We will give you an overview of the Fisheries, Aquaculture and Water Environment Bill. We will look at key provisions and the principal issues that may warrant Committee scrutiny. I will give an overview — the background — before I hand over to Suzie, who will look at some thematic issues. I will then look at some clause-specific issues, and then, as I said, Nathan will look at the Bill's cost implications.

For context, the Bill, as you are aware, was introduced on 22 June and represents a significant update to fisheries, aquaculture and water environment legislation in Northern Ireland. In effect, the Bill amends three principal legislative frameworks found under the Fisheries Act (Northern Ireland) 1966, the Sea Fish (Conservation) Act 1967 and the Water (Northern Ireland) Order 1999. The Bill contains 23 clauses and one schedule and is structured around four broad themes: inland fisheries, aquaculture, water environment and enforcement.

The Bill would introduce Northern Ireland's first statutory inland fisheries policy framework and establish seven fisheries objectives that would guide future policy and decision-making: sustainability, precautionary management, ecosystem management, scientific evidence, by-catch reduction, national benefit and climate change adaptation. One of the key elements is that the Department would be required to prepare and maintain an inland fisheries policy statement explaining how those objectives would be delivered in practice. That is a move away from a traditional fisheries management approach towards, as members have heard, a broader, ecosystem-based model. The Bill also reforms aquaculture licensing, in the sense that existing fish culture licences will be replaced by a broader aquaculture licensing regime. That extends beyond fish and shellfish farming to cover new and emerging sectors, including the likes of seaweed cultivation. The significant thing there is that existing licence holders will automatically transition to the new system. As the Committee has heard from numerous witnesses, the Bill strengthens enforcement powers, increases penalties and creates powers to introduce fixed penalty notices for fisheries and water environment offences.

Before the Bill was introduced, DAERA undertook two separate consultation exercises covering fisheries, aquaculture and the water environment. It is fair to characterise the responses as generally demonstrating strong support for a number of areas: fisheries conservation measures, improved management powers, better enforcement capability and increased penalties for environmental wrongdoing. There were, however, some concerns, particularly, for example, around potential over-regulation, the need for greater clarity of strategic direction, ensuring adequate environmental safeguards and the importance of visible and consistent enforcement. The consultation on water environment provisions found strong support for increased penalties and fixed penalty notices but noted that penalties alone are unlikely to improve outcomes unless accompanied by effective enforcement and adequate resources.

The interesting thing for us, as a research service, was that, in its consideration and presentation of the evidence, DAERA stated that the impact assessments that accompanied and supplemented the consultation were live documents that would continue to be refined during the legislative process, with final impact assessments to be published once the legislation has been enacted. We have asked whether that is standard practice, how and when the Committee will be informed of any changes to the assessments during scrutiny and whether the publication of final assessments only after enactment will provide sufficient information to support effective scrutiny of the Bill.

I will hand over to Suzie, who will take you through some of the thematic issues.

Ms Suzie Cave (RaISe): I will move on to section 3 of the paper, which, as Mark said, looks at a few thematic areas.

First, could the Bill be more comprehensive? One of the first issues identified in the paper concerns the Bill's overall scope. While the Bill introduces significant reforms, it remains relatively targeted in nature. The Fisheries Act 1966 contains over 200 sections and multiple schedules, yet only a limited number are amended by the Bill. Similar observations apply to the Sea Fish (Conservation) Act 1967 and the Water Order.

Members may wish to explore whether a wider review of fisheries and environmental legislation is necessary, whether legislative consolidation should be considered and whether the Bill sufficiently addresses recommendations arising from the 2025 independent review of environmental governance.

The next section looks at the significant increases in penalties. One of the most striking features of the Bill is the scale of proposed increases in penalties. That is shown in table 2 for the three pieces of legislation mentioned. The Bill does not create new offences. However, it substantially increases penalties for existing offences. For example, the penalties for numerous fisheries offences currently carrying a maximum fine of £500 would increase to £10,000, £20,000 or £50,000. In many instances, provision is also made for prosecution on indictment.

For water pollution offences, maximum summary conviction fines would increase from £20,000 to £50,000. DAERA's rationale is that stronger penalties will improve deterrence and bring Northern Ireland more closely in line with neighbouring jurisdictions, particularly with respect to the Fisheries Act, albeit with some differences across jurisdictions in relation to the proposed increase to the Water Order, as shown at appendix 2. However, the evidence presented in the paper raises some questions in relation to the penalty increases. Statistics provided by DAERA show relatively low levels of prosecution and conviction under existing fisheries legislation. Furthermore, fines imposed by courts under the Fisheries Act and the Water Order have generally been significantly lower than existing maximum penalties. For example, convictions under the Fisheries Act over the past five years frequently resulted in fines that ranged from as little as £25, despite the provision for fines of up to £500 for many offences on summary conviction. Members may therefore wish to ask whether increasing maximum penalties alone is likely to alter behaviour, increase compliance or improve enforcement outcomes.

The next section looks at the use of subordinate legislation. The Bill contains a significant number of enabling provisions. Many important policy details will be left to future regulations rather than being included directly in primary legislation. That applies particularly to clause 6 and the introduction of fixed penalty notices (FPNs). While many of the regulations would be subject to draft affirmative procedure, members may, nonetheless, wish to explore the Department's rationale for relying heavily on delegated legislation and whether sufficient safeguards are in place.

The next section looks at fixed penalty notices. The Bill enables DAERA to introduce fixed penalty notices for specified fisheries and water environment offences. Those would provide an alternative to prosecution for lower-level offences. However, a notable issue emerges from the consultation documentation. The consultation proposals referred to not only fixed penalty notices but broader civil sanctions, including fixed monetary penalties and variable monetary penalties, yet those do not appear in the Bill. The paper in appendix 3 notes that England, Wales and Scotland use a wider suite of civil sanctions, whereas the Bill currently provides only for fixed penalty notices. Members may wish to seek clarification on why broader civil sanctions were not included at this stage.

Finally, the last section looks at the lack of a review mechanism. The Bill does not require DAERA to review the effectiveness of the legislation after implementation. Members may wish to consider whether an operational review clause could be incorporated to assess whether reforms achieve their intended outcomes.

At this point, I will hand back to Mark, and he will look at some of the more specific issues.

Mr Allen: Thank you, Suzie. I will turn to a number of issues. First, in relation to the inland fisheries provisions, clauses 1 to 5, as I said, establish the new inland fisheries framework. It is fair to say that the proposed objectives closely mirror those in the UK Fisheries Act 2020, although they are adapted slightly for the inland fisheries context. The proposed approach appears more comprehensive than existing arrangements in England and Scotland and, in some respects, aligns us more with developments in Ireland and Wales.

There are several specific questions about the objectives. First, the scientific evidence objective requires decisions to be informed by the "best available" scientific evidence. Members may wish to consider whether sufficient fisheries and aquaculture data exists for inland fisheries and what investment might be required to improve that. Secondly, the by-catch objective raises questions around how catches will be recorded and reported and who will bear the responsibility for and cost of doing so. Thirdly, the climate change objective requires consideration of climate adaptation. Members may wish to seek clarification on anticipated impacts and any potential resource complications.

Clause 6 covers arguably the most significant issue for scrutiny. It replaces existing section 26 of the Fisheries Act 1966 and considerably expands DAERA's regulation powers. I have included in the paper a table highlighting that. The proposed powers extend beyond traditional fisheries management matters and permit regulations concerning fish stock targets, by-catch, licensing and permits, marketing and traceability, information requirements, aquaculture activities, producer organisations and enforcement measures. Importantly, it is also worth noting that regulations could create criminal offences, impose fees, confer functions on persons or organisations and amend or repeal existing statutory provisions. Given the breadth of those powers, members may wish to consider whether sufficient Assembly scrutiny and safeguards exist. The powers would be significant, in that they would enable the Department to alter primary legislation. It should be noted that regulations made under section 26 of the Fisheries Act are currently subject to negative resolution. Certain regulations made under the new proposed section 26, set out in clause 6, would be subject to affirmative resolution, as set out in clause 6(5). More specifically, that would apply if regulations contain provisions:

However, clause 6(4) clarifies:

There are potential questions. What is the justification for the increased range of powers that DAERA is seeking? How many regulations does DAERA envisage bringing forward under the provisions of clause 6 in the years ahead and in what specific policy areas? What functions does DAERA envisage conferring on persons or bodies under the auspices of clause 6(3)(a)? How many of the regulations that DAERA intends to bring forward under the provisions of the clause will be subject to draft affirmative Assembly procedure? How many regulations does DAERA envisage being subject to negative resolution, and will that apply to the majority of potential regulations moving forward?

Clause 7 aligns Northern Ireland fisheries enforcement powers with powers available elsewhere in the UK under the Marine and Coastal Access Act 2009. Additional powers include entry and inspection, boarding vessels, seizing evidence, detaining vessels, document-production requirements and the use of reasonable force. The paper notes that those powers appear to supplement rather than replace existing enforcement powers. That raises questions regarding potential overlap, complexity and resource requirements. There are questions on that. Does DAERA have any plans to repeal the existing enforcement provisions under the 1966 and 1968 Acts? In the absence of any repeals, could the field of enforcement potentially become more complicated and confusing for implementers and those subject to enforcement, given what appear to be areas of potential overlap? Would DAERA enforcement officers be adequately trained and resourced to deliver the powers that clause 7 would give them? What guidance will DAERA be providing to local enforcement officers on the potential use of the additional power of enabling the use of reasonable force, as set out in section 261 of the 2009 Act?

Clauses 11 to 14 relate to fixed penalty notices and provide the legal basis for future fixed penalty notice schemes. Clause 11 identifies a range of offences under the 1966 Act that may be subject to fixed penalties. They include licensing offences, permit offences, certain fisheries offences and selected fish-dealer offences. Questions might arise around how DAERA selected those offences and whether all of them can be genuinely regarded as lower-level offences.

Clause 13(1)(j) is especially noteworthy, in that it allows regulations to specify circumstance in which criminal proceedings could still occur after payment of a fixed penalty. What specific circumstances would enable proceedings for an offence to be commenced after the payment of a fixed penalty for that offence? That could be significant because of the general assumption in other legislation that payment of a fixed penalty results in the discharge of liability to prosecution for that offence. Would a repeat offence qualify as a specific circumstance, and why is there no explicit consideration of repeat offences as an area in which regulations on fixed penalty notices may make provision?

Clause 18 introduces the ability to transfer aquaculture licences between operators, subject to departmental approval. Questions arise about likely demand, transfer fees and safeguards against potential fraud.

Clause 19 reforms the fish dealer licensing system, replacing the existing requirement for certification by a Justice of the Peace with a departmental assessment of suitability. Members may wish to seek clarification of the criteria that DAERA intends to apply. More specifically, subsections (1) and (2) refer to DAERA issuing or renewing a licence:

On that basis, what criteria or data will DAERA use in those considerations, and what would be the threshold for approval or renewal? Additionally, would any such criteria have any effect on the existing appeals process for refusal of a licence or a licence renewal as set out in section 116 of the Fisheries Act (Northern Ireland) 1966?

Clause 22 provides that most provisions will commence on the day after Royal Assent. The notable exception is Part 5, which covers aquaculture licensing. Those provisions will come into operation on a date to be determined by DAERA. Members may wish to ask why delayed commencement is considered necessary and what transitional arrangements are anticipated. I am aware that the Committee has had correspondence to suggest proposed changes, but we still thought it useful to mention that.

The Bill undoubtedly represents one of the most significant reforms of fisheries, aquaculture and water environment legislation for many years. Whilst there is broad support for its objectives, principal issues that may require further scrutiny include the breadth of delegated powers; the effectiveness of substantially increased penalties; the scope of fixed penalty powers; reliance on future regulations; resource and implementation implications; and whether the Bill should contain a formal review mechanism.

I will now hand over to Nathan, who will take you through costs.

Mr Nathan Mulholland (RaISe): Thank you, Mark and Suzie. The review of costs considered the potential public purse implications associated with the Bill.

Section 1 provides a brief overview of the Bill. I will not go into the potential provisions covered in detail by Mark and Suzie. Section 2 outlines the financial environment in which the Bill is being considered. It highlights pressures such as significant departmental budget constraints, continuing pay and inflationary pressures, increasing demand on public services and wider Executive discussions on fiscal sustainability. As a result, any additional expenditure required to implement the Bill would need to be managed within an already challenging budgetary environment.

Section 3 is the main financial analysis. It considers the Department's consultations, the Bill's explanatory and financial memorandum (EFM), the regulatory impact assessment and a number of potential additional costs identified through the research. DAERA conducted two consultations that informed the development of the Bill. Both asked questions about fines and maximum penalties, but neither asked specific questions on the potential public-purse implications of the legislation more generally.

In the EFM, DAERA estimates policy and legislation development staff costs of £229,511 per annum, stating that the Department has budgetary cover for those costs until March 2027.

The Department also states that the existing legislation already provides enforcement powers to authorised officers and that, therefore, it does not anticipate significant additional costs associated with enforcing the updated rules. The EFM further notes that the regulatory impact assessment concluded that there were:

On that, section 3.3 considers the regulatory impact assessment (RIA) carried out on the Bill's proposals. Table 4 presents the consideration of costs carried out in the RIA. That identified that there were no anticipated additional costs for the inland fisheries policy framework; some small costs associated with training and enforcement officers and issuing guidance; no additional cost for legal fishing arising from the proposed penalty arrangements; and no cost directly associated with a primary legislative proposal for a single aquaculture licence.

During the Bill's Second Stage debate, the Minister stated:

However, the following sections of the paper identify a number of areas where additional costs could nonetheless arise. Section 3.4 considers the other potential costs associated with the Bill. We first look at the inland fisheries policy statement. Clause 2 requires DAERA to prepare and publish an inland fisheries policy statement, explain how the fisheries objectives have been applied and keep that statement under review. The financial point is that it is currently unclear whether the cost of producing, monitoring and reviewing such a statement is contained within the £229,000 policy development cost already identified in the EFM and whether that would need to be absorbed within DAERA's existing workload. Therefore, that is an area where further clarification from the Department may be useful.

The paper then considers training. DAERA confirmed to RaISe that there will be a small cost to Departments associated with training enforcement officers in the Bill's modernised powers. Similarly, the RIA identifies that small, short-term cost. However, DAERA did not quantify those costs in correspondence. Therefore, while the Department considers the cost to be small, the precise financial impact remains unknown.

Another potential cost concerns the transfer of aquaculture licences under clause 18. DAERA stated that it is concerned about the costs associated with the provision and envisages setting a fee in line with comparable Department fees on a cost-recovery basis. Nevertheless, the paper highlights the fact that administering licence transfers will require additional departmental resource, and, therefore, if the eventual fee does not fully cover the equivalent staff and administrative costs, there could still be a residual cost to the Department.

A significant element of the Bill concerns increases to the maximum penalties for offences under the existing fisheries and water legislation. DAERA describes those increases as an attempt to achieve parity with other jurisdictions and enhance compliance. To provide context, the Assembly Research and Information Service obtained prosecution and conviction data from DAERA and DOJ covering the period from 2021 to 2025. One important point is that there were differences identified in the data provided by the two Departments. The assumption, based on some of the notes accompanying the detail, was that different approaches are being taken to the methodology and how those cases are being counted. However, the data presented in tables 6 to 11 finds that there were no recorded imprisonments, suspended sentences or community sentence disposals for the relevant offences between 2021 and 2025. The number of Fisheries Act prosecutions ranged between 10 and 24 annually, and the maximum fines under the Fisheries Act were between £400 and £6,000. The number of Water Order prosecutions ranged from 15 to 26 annually, and the maximum fines ranged from £2,500 to £10,000. The Department of Justice also confirmed that all the convictions examined were dealt with summarily in Magistrates' Courts.

The next section looks at income from increased fines. The Bill proposes significantly higher maximum fines: for example, one maximum fine will increase from £500 to £50,000. Such an increase has the potential to generate additional revenue. Fine income is generally paid into the Northern Ireland Consolidated Fund, and the Bill does not provide legislative authority to retain that income directly or to offset the enforcement costs. I want to point out to the Committee an oversight in the paper. As the Committee is aware, the Bill amends existing legislation. The Fisheries Act (Northern Ireland) 1966 provides for the Department to retain revenue from fines. Therefore, there might be some potential additional revenue from convictions arising from the 1966 Act. However, the considerations in the paper remain the same for the Water (Northern Ireland) Order 1999 and the Sea Fish (Conservation) Act 1967, so fines arising from convictions under those Acts would not be retained by the Department.

I will now turn to potential prison costs. The Bill proposes increases to maximum custodial sentences for certain offences, including provisions to increase potential imprisonment from six months to two years. That introduces potential costs for the Department of Justice and the Northern Ireland Prison Service. For context, the paper notes that the annual cost per prisoner place was £57,180 in 2024-25. Therefore, if the Bill resulted in custodial sentences being imposed, additional public expenditure could arise. However, it should be noted that the evidence examined in the paper — from the tables that we mentioned previously — indicates that no custodial sentences were imposed for offences committed between 2021 and 2025. Consequently, there is a potential prison cost, the scale of which cannot currently be determined and will depend on future prosecutions and sentencing decisions.

The paper also notes recovery of expenses. Clause 20 potentially operates differently from some of the other provisions, in that it allows DAERA to recover expenditure. Where a person is convicted in relation to unlawful activity affecting a river bed, the Department can undertake the necessary remedial works and recover reasonable expenses from the offender. The paper identifies that as a potential financial benefit, in that it explicitly provides for the recovery of such expenditure.

Finally, I will turn to fixed penalty notices. There is another important potential financial area that relates to fixed penalty notices. Clauses 11 and 12 allow DAERA to introduce fixed penalty notices through regulations for offences under the Bill. Importantly, much of the detailed operation of the FPN regime has still to be established. Table 11 in the paper identifies several areas where costs could arise. Those include the development and drafting of the regulations, legal advice and possible consultation on those regulations, recruitment and/or training of authorised officers, the development or adaption of administrative systems, processing payments and monitoring compliance, guidance communications and enforcement activity where penalties are not paid. This is one of the areas where the eventual costs become clearer only when the Department develops and publishes those regulations. Again, Part 4 considers the use of secondary legislation. A number of the Bill's provisions would require subsequent regulations, including on provisions relating to fisheries regulation, fixed penalty notices, aquaculture licences and transitional arrangements for existing fish culture licences. The financial significance is that the full cost of those provisions cannot necessarily be determined from the primary legislation. The detailed operational and financial implications of those provisions may not become clear until regulations have been developed and scrutinised by the Assembly. I will finish my remarks there, Chair. I am happy to take questions from members.

The Chairperson (Ms D Armstrong): Thank you, Nathan, Mark and Suzie. I will begin with the financial implications. The EFM states only the definitive amount of £229,000 for staff costs. Is more reassurance needed on unanticipated costs?

Mr Mulholland: As I said, as identified in the regulatory impact assessment and in my communications, other small costs were noted by the Department. Again, however, no figure was put on those. I got clarification that that covered only policy development and not some of those other areas. Having reflected on previous legislation and because this is planned legislation, I think that many of those costs can be absorbed into existing activity in the Department, and officials can take on those responsibilities. It may just become a part of someone's existing role, but it will need to be clarified whether additional resources would be required or whether the cost would be absorbed into the Department's existing structures.

The Chairperson (Ms D Armstrong): Thanks, Nathan. Do we have any idea of what happens after March 2027 with staff costs?

Mr Mulholland: I did not find that out. I cannot remember. I believe that I tried explicitly to ask the question, but I do not think that it was clear from the answer what will happen: whether that finishes the policy end of it or whether the enactment of the outworkings of the Bill becomes part of something slightly separate. I apologise that I was not able to get clarification on that.

The Chairperson (Ms D Armstrong): Mark and Suzie, in the thematic issues, you raise the scope of the Bill. Do you think that the Bill is a potential missed opportunity for a wider review on consolidation? Do you think that we will come back next year, if the Bill is enacted, to add to it and to make further Bills on fisheries and aquaculture? Is it sound as it is, or could there be changes?

Ms Cave: From the environmental governance side, there have been reviews of that and of the need for consolidation and review. Mark, do you want to come in on the fisheries side?

Mr Allen: I will expand on what Suzie said. A couple of members around the table will probably remember the last effort to amend and, in fact, replace the 1966 Act, which was a lot more extensive in its aspiration. Ultimately, through various circumstances, it was more limited.

The three pieces of legislation that are being amended are not being amended in their entirety, which raises a legitimate question about how that all hangs together moving forward. It is already quite a complex environment, even as we look at it. Many pieces of legislation hang together, and how they hang together is one of the challenges for those who are subject to the provisions in each. As Suzie said, one of the reviews highlighted potential overlap or a need for clarification moving forward.

Ms Finnegan: You mentioned a few times that the Bill aligns with or mirrors UK inland policies. In respect of an all-island approach, given that waterways straddle the border — a really good example is the River Blackwater, which runs through my county and is one of the main feeders of Lough Neagh — do you agree that it is important that it aligns with policies in the South as well?

Mr Allen: We know what the river basin management plans are. Suzie is probably better able to talk to that issue, but those consider the cross-border dimensions. One of the challenges is whether enforcement regimes will be similar. Suzie, do you want to say more about that?

Ms Cave: We are at the stage of the first cycle of the river basin management plans, and two of the plans cross over. Since Brexit and the water framework directive, certain elements have been carried forward anyway. One of those has been a collaborative approach from the coordinated all-Ireland ministerial group. Under that is the development of the shared waters document. That could be asked about in relation to the changes that are coming in under the river basin management plans: the cross-border element, the four pillars and what interaction there has been with authorities down South on any differences in approach or enforcement.

Ms Finnegan: My follow-up question is on enforcement. If a pollution incident in the South were to have a consequential impact in the North, how would enforcement happen? How would we know who was liable for the enforcement or for that incident?

Mr Allen: That is a good question. I do not know whether we can answer that today, but how the Bill changes enforcement or penalties plays directly into that conversation.

Ms Cave: We are already seeing a slight difference between us and across the border in respect of the change in the maximum fine here to £50,000 and even our use of fixed penalty notices, whereas the legislation down South does not seem to apply those approaches. It may be worth asking about those differences.

Ms Finnegan: It may be. In other evidence, we heard that there is no maximum. European laws are different, and I would need to look that up. It is a good question. The maximum penalty is being upped, but, if an incident in the South had an impact in the North, how would we identify who was liable for the enforcement? Thank you very much. That is really useful.

The Chairperson (Ms D Armstrong): Members, I seek your agreement that we ask the Department to comment and respond to the issues in the RaISe paper.

The Chairperson (Ms D Armstrong): Thank you very much for coming in and giving us your presentation.

Mr Allen: Thank you, Chair and members.