Joint Committee on Statutory Instruments Ninth Report


APPENDIX 3

Memorandum by the Ministry of Agriculutre, Fisheries and Food

SEA FISHING (ENFORCEMENT OF COMMUNITY CONTROL MEASURES) ORDER 2000 (S.I. 2000/51)

  1. The Select Committee has requested submission of a memorandum on the following point:

    "Given that, as regards Wales—

      (a)  the function of making orders under section 30(2) of the 1981 Act has been transferred to the Welsh Assembly (by S.I. 1999/672);

      (b)  the existing orders have been preserved as law in Wales (see article 13's limited revocation);

      explain why article 1 contains no provision precluding this order from forming part of the law of Wales (as it does for Scotland)."

  2. The function of making orders under section 30(2) of the Fisheries Act 1981 has only been transferred to the Welsh Assembly in so far as such function is exercisable in relation to Wales. For this purpose Wales is defined as including "the sea adjacent to Wales out as far as the seaward boundary of the territorial sea" (section 155(1) of the Government of Wales Act 1998). The territorial sea extends to 12 miles, while British fishery limits extend to 200 miles. This differs from the position in relation to Scotland, where the "Scottish zone" extends to the boundary of British fishery boats, no distinction has been drawn between fishing boats whose registration specifies a port in England and those whose registration specifies a port in Wales or Northern Ireland as the port to which that vessel is to be treated as belonging. All such fishing boats are defined in the Sea Fisheries Acts (as amended by the Scotland Act 1998 (Consequential Modifications) (No. 2) Order 1999 (S.I. 1999/1820)) as 'relevant British fishing boats'. Accordingly, whilst the function of Scottish Ministers in so far as it relates to fishing by Scottish fishing boats outside the Scottish zone is to be treated as exercisable in or as regards Scotland (by S.I. 1999/1756), the Welsh Assembly's function does not extend to fishing outside the territorial sea of Wales by any relevant British fishing boats (even those whose home port is in Wales).

  3. Council Regulation (EEC) No. 2847/93 establishing a control system applicable to the common fisheries policy, as amended, promulgates various control measures relating to fishing activities within a Member States' fishery limits and, in certain cases, to such activities in international waters. However, the Welsh Assembly's order making function is only exercisable in relation to Wales and it can only create offences in respect of prohibited activities carried out in relation to Wales. Therefore, it is necessary for the order to have effect as law in Wales in so far as it creates, or relates to, offences in respect of prohibited fishing activities perpetrated outside Wales.

  4. The order does not create offences in respect of any activities carried out in relation to Wales. Nor does the order make provision for Wales in relation to other matters which are the function of the Welsh Assembly; for example, the provisions of the order laying down penalties and providing for the recovery of fines (articles 4 and 5) are expressly limited to convictions in England and Northern Ireland.

  5. The revocation of the existing orders, in so far as they relate to Wales, fall within the function of the Welsh Assembly. In other aspects the function of revoking the existing orders in so far as they apply to Wales vests in the Minister of Agriculture, Fisheries and Food and the Secretaries of State respectively concerned with sea fishing in Scotland, Wales and Northern Ireland ("the Ministers"). However, the Ministers had not seen a draft of the Welsh Assembly's proposed order for the enforcement of Council Regulation (EEC) No. 2847/83 before this order was made and it was apparent to the Ministers that there would be a delay between the date that the order would be made and the making of the equivalent order of the Welsh Assembly. In the light of this knowledge, it was decided that, since this was the first time after Scottish and Welsh devolution that orders were required to be made under section 30(2) of the 1981 Act, the safest and most pragmatic option was to wait and see to what extend the equivalent Welsh order revoked the existing orders and then, by a further order by the Ministers, to make such remaining revocations as were necessary.

1 February 2000


 
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