HC Deb 10 December 1976 vol 922 cc840-63
Mr. J. Enoch Powell (Down, South)

I beg to move Amendment No. 1, in page 1, line 10, leave out from 'Council' to 'declare' in line 12.

Perhaps on this first amendment a general remark will be permitted. It appears from the Order Paper that no hon. Member present would demur at the fact that the remaining stages of the Bill may also be taken today. It follows that no account will be able to be taken today of Report. Indeed, there will not be a Report stage, since no amendments will be made. Therefore, no account will be able to be taken of any arguments put to the Government during discussion in Committee, even though they may be of substance.

Fortunately, however, we are in the advantage of having a second House. I am not making a political point; I am simply making a technical or procedural point. That means that the Government will have the opportunity of considering points made by hon. Members during this Committee stage. I would take the liberty of asking the Ministers in charge of the Bill whether they will bear that in mind in listening to the arguments which are put and in the formulation of any response which they may think proper to make. This is a case in which we cannot, at any rate, make use of the other place.

Mr. McNamara

Is the right hon. Gentleman aware that the other place will be considering the Bill after the ministerial meeting on 14th December? I think it will be discussed on 17th December. Therefore, the other place will have an added advantage of perhaps being able to take many of our points even further.

Mr. Powell

The hon. Gentleman strengthens the case that I am putting to the Minister to keep an open mind as far as possible and realise that the Government are not up against the clock in reconsidering points which may be brought out during the course of this Committee stage.

The purpose of the amendment is simple. It is not exactly a probing amendment, but I begin by probing.

As the Bill stands, it makes it possible for the Government to extend the fishery limits for the purpose of implementing either an international agreement or an arbitral award, or otherwise. That would appear to be comprehensive and to cover all possible circumstances. As the House generally is desirous that in no way should the power of the Government to act under this clause be limited, we should like to have a possible anxiety removed.

The anxiety is that, in accordance with what I understand is a rule of interpretation, the words "or otherwise" might be understood to be coloured or limited by the preceding references to an international agreement or arbitral award; so that, if these words remained in the clause, we would not be conferring what we wanted to confer—a power on Her Majesty's Government in the United Kingdom suo motu, if we thought fit ourselves to extend fishing limits, and that we should be able to do so in default of or in the absence of any international agreement or arbitral award.

I fear that the very fact that these words have been put in will lead to the interpretation that the power is not intended to be an unlimited one and that the words "or otherwise" will be taken to cover something that is neither pre- cisely an international agreement nor precisely an arbitral award, but which nevertheless is of the same kind.

I hope that the Minister will be able to reassure the Committee that the power which is being taken is unlimited and unfettered, and can be used, if necessary, quite unilaterally by the United Kingdom. But, even if that is the assurance which the hon. Gentleman is about to give, I must say to him that his Bill would be a better and clearer one without the words that I propose to leave out.

The Minister of State, Ministry of Agriculture, Fisheries and Food (Mr. Edward Bishop)

I take the right hon. Gentleman's first point. We want to make progress on the Bill. I can assure the House that the Government will be as flexible as possible in dealing with the matters raised in the various debates and that, if necessary, we shall decide what further action to take.

The right hon. Gentleman's amendment would have no practical effect, because the words that it seeks to delete do not limit in any way Her Majesty's power to specify a line to which British fishery limits may extend. I think that that was one of the assurances sought by the right hon. Gentleman. The words are important since they give an indication to those in other countries, as well as here, of what the power will be used for.

We are obliged under international law to agree the boundaries of our fishery limits with other countries whose fishery limits adjoin our own. In many cases, the line agreed will be not a strict geographical median line but the result of a negotiation or arbitration, taking account of factors such as the trend of the nearest coastline. It is also a common practice to agree a straightened or "area-compensated" median line rather than to follow every turn in the coastline.

Although the Bill provides for a median line to operate where limits cannot extend to 200 miles and where no other line has been specified, the line may be changed later following agreement with our neighbours.

I emphasise what I said earlier. It is important that the words in question should be retained so that other countries have some idea about our intentions. It may be a presentational matter as much as anything, but it is important, nevertheless.

Leaving the words in the clause will not restrict or inhibit our power. The words "or otherwise" are there, in any case.

Following that explanation, I hope that the right hon. Gentleman will ask leave to withdraw his amendment.

11.15 a.m.

Mr. J. Grimond (Orkney and Shetland)

I want first to emphasise what the right hon. Member for Down, South (Mr. Powell) said in his opening remarks. I am glad to have the Minister's reassurance. This Bill is urgent, because of the Icelandic situation. However, it goes a great deal further than simply dealing with that situation. We have been left little time for consultations with associations, and so forth, about this Committee stage. I appreciate the reasons, but I hope that the Minister will follow up his promise, consider what is said today and, if necessary, table amendments in another place.

As for the amendment, despite the Minister's argument and although he made out a case for including the words sought to be left out, in my view it is much better drafting to leave them out. I cannot see that they add very much. There may be all sorts of other reasons for altering the limits besides international agreements. We are not specifying all those. I was unimpressed by the Minister's argument for keeping in the words.

It is a principle of drafting that if, at the end of a phrase, the words "or otherwise" are added, the phrase itself may be taken as being limited; that is to say, that the word "otherwise" refers to the preceding words—in this case any international agreement or the arbitral award of an international body", and that, therefore, this might be a limitation.

Mr. Powell

I am much obliged for the support of the right hon. Member for Orkney and Shetland (Mr. Grimond).

As for what the Minister said, I am, I hope reverently, reminded of the words The Lord giveth, and the Lord taketh away. First, the Minister said that the words were unnecessary, and imposed no limitation. But he went on to a fairly lengthy exposition of what other countries were expecting of us, and arrangements into which we might enter in consequence of which we might prescribe lines other than the median line. I cannot see how the provision in subsection (3), which permits a line other than the median line to be prescribed, is inhibited if the words which I propose to leave out are not there.

Then the hon. Gentleman said that people in other countries read our statutes with great care. They read them rather like they might read a leading article in The Times, imagining that it is official. The statutes of Parliament are not compiled or drafted for the purpose of conveying information and assurances to other countries. We maintain a Diplomatic Service and other channels to do that. We do not need to put words into a statute to convey reassurances to other countries.

These are the laws by which the subjects within the jurisdiction will be bound. We ought to have regard to that and to that only, and to simplicity and clarity in that context, when we legislate

I am obliged to the right hon. Member for Orkney and Shetland for his professional endorsement of my proposition that the words "or otherwise" thus written are liable to be taken as restrictive, and there was nothing in the Ministers gloss to indicate that he had the notion that we would not be restricted to limits agreed internationally or imposed by an arbitral award

Therefore, I ask the Minister to have a second bite at this. He said quite firmly that the acceptance of this amendment would in no way limit or alter the effect of the Bill, that it would do no harm, and that it would not change the meaning. This is the first amendment that we are considering. I hope that the Minister will show willing and indicate that he will take into account what the right hon. Member for Orkney and Shetland and I have said before this Bill is disposed of in another place.

Mr. Bishop

The point made by the right hon. Member for Down, South (Mr. Powell)—that I have said that the amendment would have no practical effect because the words that it seeks to delete do not in any way limit Her Majesty's power to specify the line, and so on—is a point equally in my favour for saying that the words should be retained. Because words appear in a Bill, it does not necessarily mean that in all cases they should remain there. I have made the point—the Committee generally will appreciate the force of what I have said—that, under international law, we are obliged to agree the boundaries of fisheries limits either by consent or by arbitral award. These are two of the factors which we believe justify subsection (2).

Mr. Powell

As I understood it, the Minister said that, under international law, we are obliged to extend boundaries only as a result of international agreement. Otherwise I see no point in what he said. I thought that the countries of the European Economic Community were severally extending their boundaries, no doubt in cahoots among themselves but not as a result of international agreement

Mr. Bishop

The right hon. Gentleman interrupted me just as I was coming to the point that he made. The subsection provides that Her Majesty may by Order in Council, for the purpose of implementing any international agreement —that would be one of the most frequent reasons for the clause coming into effect— or the arbitral award of an international body". We anticipate that these may possibly be the most frequent occasions when this will happen. We also have the safeguard of putting in "or otherwise". The first two categories give substance to the subsection, need for clarity. I thtink that the retention of those words clarifies the clause.

The right hon. Member for Orkney and Shetland (Mr. Grimond) referred to the need for clarity. I think that the retention of those words clarifies the clause.

I hope that, with that explanation, the Committee will see fit to leave the clause as it is. I think that it helps to specify the major situations in which Her Majesty may, by Order in Council, make these orders.

Amendment negatived.

Mr. Powell

I beg to move Amendment No. 2, in page 1, line 22, leave out 'Subject to section 10(2)(b) below'.

The Chairman

With this we may take the following amendments:

No. 34, in Clause 8, page 6, leave out lines 12 to 14.

No. 35, in page 7, line 1, leave out Clause 10.

Mr. Powell

This is a paving amendment to a proposal in Amendment No 35 to delete Clause 10 and consequently to delete the interpretation of "enactment" on page 6, line 12, which hangs together with Clause 10, as I understand it.

As I intimated in correspondence with the Secretary of State, these amendments belong in a somewhat wider context. It is the policy of Her Majesty's Government—a policy which was being implemented at an earlier hour this morning in an even more thinly-attended Chamber—that the law in Northern Ireland should, as far as and whenever possible, be identical with the law in the rest of the United Kingdom. That is sometimes inhibited by the fact that over periods in the past the making of the law in Northern Ireland, though mostly broadly in line with the law in the rest of the United Kingdom, has proceeded by way of a different series of statutes. But I understand that it is the Government's policy—it is certainly a policy that is warmly approved by my hon. Friends and myself—that we should avoid any differentiation between the law in Northern Ireland and that in the United Kingdom and that, wherever possible, common statutes should be passed by the House of Commons for the whole of the United Kingdom, or at any rate, statutes which include Northern Ireland.

After that general background I come to the relative minutiae of Clause 10. It is difficult to see what would be the difference in the law as applied to Northern Ireland in the absence of Clause 10.

There is a reference in one of the schedules to a specific Northern Ireland statute, but I should have thought that that reference was self-explanatory and valid in itself without any explanation in the interpretation clause—Clause 8. The best endeavours of my hon. Friends and myself have not enabled us to perceive where the law of Northern Ireland so differs from that in the rest of the United Kingdom that the provisions of Clause 10 are necessary to achieve our common purpose. Therefore, I invite the Minister of State to clarify the position for Northern Ireland Members so that we can consider our attitude on the amendments.

Mr. Bishop

The effect of the amendment would be to delete the definition of "enactment" as including an enactment of the Parliament of Northern Ireland and a measure of the Northern Ireland Assembly. It is standard practice to make express division where references to enactments are to include matters other than the legislation of the United Kingdom. This is the practice relating to Northern Ireland legislation of local origin. I am speaking now to Amendment No. 2. So uniform is the practice that to depart from it would create the impression that Northern Ireland legislation was not intended to be included. I take it that is not what the right hon. Member for Down, South (Mr. Powell) would want. I do not dissent from the general principle that Northern Ireland should not be treated any differently from the rest of the United Kingdom.

The effect of Amendment No. 35 would be to remove Clause 10. I should like to explain the purpose of the clause, which is three fold.

First, it explicity extends the provisions of the Bill to Northern Ireland. That is necessary in order to remove any doubt about that fact.

Secondly, there is an exception to this rule in respect of the repeal of Section 13(1) and certain dependent words in Section 13(3) of the Sea Fisheries Act 1968. Section 13(1) is still needed in Northern Ireland, and the Bill accordingly implements that provision.

The third function of Clause 10 is to preserve the status quo in water in each end of the land boundary separating Northern Ireland from the Irish Republic. The reason is that the present arrangements for access to fisheries in waters adjacent both to Northern Ireland and to the Irish Republic are for the time being satisfactory, although no boundary lines have ever been established separating Northern Ireland's jurisdiction from that of the Irish Republic out to 12 miles. In particular, there is an informal arrangement for each country's vessels to have access to the other's waters.

I hope that I have satisfactorily explained or at least clarified the reason why special provision has been made for Northern Ireland and that the right hon. Member for Down, South will feel able to ask leave to withdraw the amendment.

11.30a.m.

Mr. Douglas Hurd (Mid-Oxon)

Most of us on the Opposition side of the House will have considerable sympathy with the point of principle raised by the right hon. Member for Down, South (Mr. Powell) that we should make every effort to avoid the kind of specific extension clause that we see in Clause 10. If it is necessary—it was not entirely clear from what the Minister said why it is necessary—to retain in force Section 13 of the Sea Fisheries Act 1968 for Northern Ireland, would it not be better to say so and to put it in that form? Equally, if it is necessary to make specific provision for fishery limits in the waters adjacent to both Northern Ireland and the Republic, would it not be better to put it in a straightforward way, so that the necessary Northern Ireland limitations are contained in the Bill? Would not that be preferable to the much more general form, which appears to indicate that it is necessary in some way to extend the provisions of the Bill to Northern Ireland by a specific clause?

It seems to me that if it is necessary to include these practical points affecting Northern Ireland, it would be better to turn the whole thing the other way round than have a specific clause covering Northern Ireland.

Mr. Powell

I am obliged to the Minister of State for his initial exposé of some of what lies behind Clause 10. However, it is obvious from his exposé that it is quite big stuff and that it covers matters which would not have been suspected by the House from anything we have yet been told about the Bill.

Let me take the Minister of State's points in order. First, I accept, on the question of the definition of "enactment", that it is necessary to avoid any doubt as to whether reference to "enactment" as an Act of the United Kingdom Parliament includes an enactment of the former Parliament of Northern Ireland. However, the reason for proposing to delete that definition here is that the only relevant place where "enactment" occurs, so far as I had understood, was in Clause 10. In a sense, therefore, the second of the three amendments was regarded as consequential upon the third amendment.

If in United Kingdom legislation we shall always have something in the definition clause to explain that by "enactment" we include an enactment of Northern Ireland, or special exceptions wherever we do not, I suggest that we take the opportunity in some convenient piece of legislation to put that on the record, as it were, on the statute book as a standing matter of interpretation, just as very many definitions are covered for good and all by the Interpretation Acts. That is my smallest point.

My second point is that the Minister of State said that it was necessary to make it explicitly clear that the Bill applied to Northern Ireland. I have no objection to a clause at the end of the Bill setting out application and extent and saying that it applies to Northern Ireland. However, it is difficult from reading Clause 1(1) to imagine that this Bill will not apply to Northern Ireland. The Bill says that subject to following provisions, British fishery limits shall extend to the specified distance from the baselines from which the breadth of the territorial sea adjacent to the United Kingdom, the Channel Islands and the Isle of Man is measured. If that does not apply to Northern Ireland as it applies to the rest of the coastline of the United Kingdom, I do not know what does. It is rather shaking for us to be told that references to the United Kingdom will not mean the United Kingdom, or that references to the coast of the United Kingdom will not include the whole of that coast unless specific and ad hoc provision is made to secure that result.

I come, then, to Clause 10(1). The Minister said that we have to include an exception from the extension to Northern Ireland of a repeal of an Act which does not extend to Northern Ireland. I simply do not believe that the effect of Section 13 of the Sea Fisheries Act on the Bill as it stands would be in any way prejudiced by anyone mistakenly thinking that it could apply to Northern Ireland. What the possible point could be of the mumbo-jumbo of saying that a section which covers Great Britain does not apply to Northern Ireland is beyond me to imagine. This seems to me to be one of those draftsmen's cat's cradles which, however, can have significant political side effects.

That brings me to the fourth and major point. The Minister of State lifted quite a significant corner of a curtain here. He said that the Government want to preserve the present position on fishery limits off that part of the United Kingdom which is Northern Ireland because, he said, the status quo there depended upon informal arrangements which the Government want to continue.

I very much doubt whether any hon. Member who studied the Bill or who attended the Second Reading debate was aware that part of the definition of British fishery limits as a result of this Bill was not going to be what appeared in the Bill but the continuance of a status quo based upon informal arrangements. These informal arrangements, which I confess I had not realised were quite so informal as they are, are arrangements whereby the Irish Republic gives special facilities in its waters not to British fishing vessels, not to fishing vessels of the United Kingdom as such, but to fishing vessels registered in Northern Ireland.

In fact, the status quo and the informal arrangements are part of the continuing determined political campaign by the Irish Republic to assert that Northern Ireland is juridically part of the Irish Republic, as is claimed in the constitution of the Irish Republic. So, when the Minister of State lightly talks about maintaining the status quo which is based on informal agreement, he means retaining a status quo which informally concedes the claim by the Irish Republic that there are two classes of citizens of the United Kingdom, those who are connected with Northern Ireland and those who are not, and which secures different fishing rights to those two different classes.

This is part of the continuing proposition advanced by the Irish Republic that the whole of the island of Ireland should be, and juridically is, part of the Irish Republic—a claim which I believe is repudiated not only by hon. Friends and myself. But if this is a status quo which is based upon informal arrangements, do we understand from it that any extensions of fishery limits which will be made by order under the Bill will not apply where those informal arrangements are to be undisturbed?

Does this mean that all the provisions about licensing, and the rest, are not to apply to the waters around Northern Ireland in which the status quo, based upon informal arrangements, is to continue? Are the licensing and conservation arrangements and the provision of certain limits for certain purposes to apply to the waters around Northern Ireland as they apply to the waters around the rest of the United Kingdom?

The Minister of State has certainly shown that Clause 10 needs debating, and not simply as a private matter of local interest to Northern Ireland and Northern Ireland Members. It affects the rights of fishermen whose boats are registered in other parts of the United Kingdom. It is an integral part of the British fishery limits policy.

Therefore, the Minister of State, having opened up, as it were, part of the debate, ought not to leave the matter as it is but ought to explain exactly, first of all, what is the present position on the waters around Northern Ireland; secondly, how, if at all, that will be altered under the Bill by orders made under the Bill; and, thirdly, if it is to be altered differently from the alteration that will take place elsewhere, what is the justification for that.

Mr. Wm. Ross (Londonderry)

Like my right hon. Friend the Member for Down, South (Mr. Powell), I was not aware that the neighbourhood agreements that exist between Northern Ireland and the Republic were as totally informal as they seem to be. It appears to me that the agreements that have been reached have no statutory ground whatsoever. If that is so, the Minister has a clear duty, as my right hon. Friend said, to explain precisely what the position is, especially as in my constituency in the Foyle area we have the salmon fishery problem. This area is controlled by a cross-border body. This appears to be muddying the coastal waters even further than is normally the case across international boundaries.

If these boundaries have never been agreed, it appears that across the international boundary, on both sides, there is now a grey area where no one fishing in the territorial seas is very clear as to whose piece of water he is on at a given moment. While this could very well have been veiled over when the limits were three, six or 12 miles, it is quite impossible for this hazy area to continue in an ever-expanding angle out to 200 miles.

It is not only Northern Ireland that will now be affected. Scotland and England will be affected by the agreements reached between Northern Ireland and the Republic, which are now to be called in question because of the new limits for the United Kingdom as a whole.

There is another point, on which my right hon. Friend did not touch today although he mentioned it on Second Reading. That is the fact that the Bill talks not only about fishery limits but about economic boundaries and economic limits. With all the present hullabaloo about oil exploration and the possibilities of other minerals being brought out from underneath the sea bed, perhaps the Minister would be good enough to let us know precisely when the economic limit is to be decided between Northern Ireland and the Republic.

Mr. Bishop

I appreciate the strength of feeling of the right hon. Member for Down, South (Mr. Powell) and his hon. Friend the Member for Londonderry (Mr. Ross) on this matter. I have said that the third function of Clause 10 is to preserve the status quo in waters at each end of the land boundary separating Northern Ireland from the Republic. The reason is that the present arrangements for access to fisheries, and so on, are for the moment satisfactory. We could put a lot more into the Bill or take a lot out of it. However, there are situations in which, as far as possible, one would seek to maintain the status quo and, at the same time, seek powers from the House to make changes.

As I see it, the position is that the purpose of Clause 10, which is thought by some to be unnecessary, is to extend the provisions of the Bill to Northern Ireland, apart from the repeals of Section 13 of the 1968 Act, and to avoid committing the United Kingdom to drawing a median line with the Irish Republic at either end of the land boundary, where it meets Lough Foyle on the north coast of Ireland and Carlingford Lough on the west coast.

Section 13 has been superseded in England and Wales by the Powers of Criminal Courts Act 1973 but that Act does not extend to Northern Ireland. Therefore, Section 13 (1) is still needed there, although we are repealing it for England and Wales.

11.45 a.m.

As I have said, the first amendment is a matter of standard practice, and I still suggest that Clause 10 should be retained.

In general, the Bill is to give us powers. Obviously we cannot change every situation immediately, especially without discussion, perhaps, in some areas. The Bill maintains the status quo but gives powers to take action in the future. Clause 10(3) gives power to vary the boundary line should it be desirable to specify, and we are taking that power. That is what it is all about.

Therefore, with that assurance I hope that the right hon. Member will ask leave to withdraw the amendment.

Mr. Powell

I am obliged to the Minister of State for his second attempt. My colleague and I will certainly study the contents of his two answers, which he was good enough to recognise are obviously of great significance and importance to us.

I appreciate that Clause 10, like other parts of the Bill, apparently, as we have learned this morning, both gives and takes, in the sense that, if I have it right, Clause 10(2) preserve a situation but Clause 10(3) enables that situation to be altered. It is a curious way of doing it, since in Clause 1 we start by defining British fishery limits, but we say that from those limits the waters specified in Clause 10 are an exception. Then in Clause 10 we give power to treat those specified waters as if they were not so specified in Clause 10.

I can see that the Minister of State is entitled to claim that in Clause 10 we are dealing with interim or transitional provisions. It has been useful to have that clearly established, because it certainly did not appear to the layman upon the face of the clause. However, we are still in some difficulty in understanding two points that have arisen.

The first point is the difficulty about the median line. Why is there any diffi- culty that arises over a median line at either end of the junction of the coast of Northern Ireland with the coast of the Republic? One would have thought—there may be reasons to the contrary—that there was every advantage in that being defined and agreed, and that there were obvious dangers and disadvantages in such a median line being a matter of informal understanding, which justified the Minister of State in saying that apart from such an understanding there are no boundary limits in those waters. That, surely, is an unsatisfactory position, especially in the new era into which in these matters we are moving.

Secondly, it would seem undesirable that there should be any variation or difference in the sort of powers that the Government will exercise over territorial waters—British fishery waters—in any part of the fishery waters surrounding the United Kingdom. When I say that, there is in my mind no desire that any such licensing should diminish any traditional rights which the citizens of the Irish Republic have been enjoying to fish in British waters, provided, of course, that a reasonable arrangement continues. However, surely it is desirable that as soon as possible we should bring about a situation in which licensing, orders and prohibitions under Clause 3 apply equally to all boats registered in the United Kingdom and to all the fishery waters of the United Kingdom.

I hope that the Minister of State will accept that this debate on Clause 10 is really the beginning of a process. It is the beginning of a process in which hon. Members will have a duty to interest themselves—I am glad to see signs of assent from the Treasury Bench—and of which the end result will be that the fishery waters of the United Kingdom will be properly defined by statute in all cases and that the powers as to prohibition and licensing will apply equally and in the same way in all parts of those waters. I am taking into account the fact that different areas will be designated differently but that as a matter of statute law these provisions will apply in the same way to all boats and fishing originating from the United Kingdom.

If the Minister of State can confirm—as he has already indicated silently—that this is what the Government envisage, I think the past half hour or so of debate will not have been wasted.

Mr. Bishop

I appreciate the points made by the right hon. Member for Down, South (Mr. Powell): I hope that he will accept that we cannot at this stage of the Bill, and in the short time that we have, make a lot of changes, but the Bill leaves it open to us to make changes in future. We will note what the right hon. Gentleman has said.

Mr. Powell

In view of the assurances that have been given, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Clegg

I beg to move Amendment No. 3, in page 1, line 25, at end add— '(6) No Order in Council shall be made under subsection (2) unless a draft thereof has been laid before, and approved by a resolution of, each House of Parliament'.

The Chairman

With this we may take the following amendments:

No. 4, in page 1, line 25, at end add— '(6) An Order in Council made under subsection (2) shall be subject to annulment in pursuance of a resolution of either House of Parliament'.

No. 6, in Clause 2, page 2, line 5, at end insert— 'and any such order shall be subject to annulment in pursuance of a resolution of either House of Parliament'.

No. 11, in Clause 2, page 2, line 29, at end insert— 'which shall be subject to annulment in pursuance of a resolution of either House of Parliament'.

Government Amendment No. 16.

No. 19, in Clause 3, page 3, line 44, at end insert— '(5) No order under this section shall be made unless a draft thereof has been laid before, and approved by a resolution of, each House of Parliament'.

No. 20, in Clause 3, page 3, line 44, at end insert— '(5) An Order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament'.

No. 32, in Clause 6, page 5, line 37, at end add— 'which shall be subject to annulment in pursuance of a resolution of either House of Parliament, except in the case of orders made under section 12'.

Mr. Clegg

I have moved the amendment on behalf of my right hon. Friend the Member for Crosby (Mr. Page), who regrets that he cannot be in the House today because of a long-standing engagement. My right hon. Friend is Chairman of the formidable body known as the Select Committee on Statutory Instruments, and he gives great care and attention to every measure that comes before the House to see that the legislation that Parliament is passing permits Parliament to have a say in the secondary legislation that flows from each measure.

As hon. Members will see, the effect of this series of amendments is that in Clauses 1, 2 and 3 the House is offered a choice between the affirmative procedure and the negative procedure. Clauses 1, 2 and 3 permit the Minister to make orders without reference to Parliament and without parliamentary check. I note that Amendment No. 16, in the name of the Minister, does at least allow Parliament the negative procedure in respect of orders made under Clause 2. I cannot see why, if the Government have gone that far, they should not agree to extend it to Clauses 1 and 3, which are important. There can be no doubt that the question of limits has aroused great controversy in the House whenever the House has been able to consider it. The regulations in Clause 3 dealing with sea fishing are matters of the utmost concern to every hon. Member who has a fishing port in his constituency.

I do not intend to labour the point, because it is an old battle which Back Bench Members fight time and time again to enable us to control the delegated legislation which flows from Acts. I think the Government should go much further than they have done and apply the negative procedure—which at least give us an opportunity for discussion—to Clauses 1 and 3 as well as to Clause 2.

Mr. Powell

I support the case put forward by the hon. Member for North Fylde (Mr. Clegg). We appreciate that the Government have partly seen the force of the contentions expressed in amendments which appear on the Amendment Paper, but the hon. Member for North Fylde is right in saying that there may be, and often will be, matters in orders made under other clauses—particularly under the very important Clause 3 —which could call—and I emphasise "could"—for parliamentary scrutiny and debate.

Orders made under Clause 3 could directly and totally affect the livelihood of fishermen. While I am not suggesting that the Government would intend to do so, the orders could act in an arbitrary and unreasonable manner. In such cases the House should retain the ultimate power of control. This is a power which it is much easier for Governments to concede nowadays than it used to be 20 years ago, when this sort of amendment was a regular feature of Committee stage debates. What happens now—and we all understand this—is that in all but the rarest cases, when an order is prayable, we go through the procedure that results in a non-dividable debate taking place in Committee upstairs so that the Government can expose the reasoning behind orders or Statutory Instruments.

I do not pretend that I think that state of affairs is satisfactory. The House still has to improve on what is really a shabby procedure, as it has come to be over the past 20 years, but it helps our argument today in that, if the Minister of State concedes—as I hope he will—that there is a case for the negative procedure applying not only with Clause 1 but also with Clause 3, he will not be in trouble with his Whips' Office and the Leader of the House for having landed them with immense stretches of parliamentary time, because all that this will mean is that on some occasions when it is highly desirable to secure the compliance and understanding of people in the fishing industry there will be an opportunity for the reasons and the background to be explored and expounded. I hope that the Minister of State will show himself to be flexible beyond the point which his amendment indicates.

Mr. McNamara

I support what has been said by the right hon. Member for Down, South (Mr. Powell) and the hon. Member for North Fylde (Mr. Clegg). It seems that in any type of legislation where powers are given for regulations to be made we should, as a general principle, have those regulations debated before the House or in Committee upstairs and that only on special occasions should it be possible for orders to be made without a proper explanation for people to understand what is being done and for the Government to justify their action.

I welcome what the Minister has done, but Ministers should as a general principle look with more care at the types of procedure used when dealing with Statutory Instruments. It should be the exception rather than the rule that regulations do not come before the House or a Committee upstairs. I urge my hon. Friend—I thank him for the indication he has given—to consider whether further progress can be made on this issue when considering the Bill in another place.

Mr. Hurd

I, too, urge the Government to look again at the concessions which they are prepared to make in this area. As the Minister of State said, this is a Bill which gives powers. We all accept that the powers required by the Government are very substantial because of the negotiations in which they are involved and because of the practical needs of the situation, but we should not let our support for that basic principle of the Bill blind us to the fact that these powers are substantial.

We are dealing with an almost revolutionary change in this sector of our national life. There will be quite rapid changes in directions which cannot easily be foreseen. It must therefore be right for Parliament to keep under its supervision and control the exercise of those powers.

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The Minister indicated by the amendment he tabled that he accepted that argument for Clause 2. The right hon. Member for Down, South (Mr. Powell), following my hon. Friend the Member for North Fylde (Mr. Clegg), argued cogently that the same importance attached to orders which might be made under Clause 3.

Under Clause 1(2), which is also covered by the amendments tabled by my right hon. Friend the Member for Crosby (Mr. Page), Her Majesty may, by Order in Council … declare that British fishery limits extend to such other line as may be specified in the Order. That is a very large decision to be made simply by order without provision for parliamentary control. It involves the alteration of the whole basis of the Bill from 200 miles to another figure. There is a very strong case for accepting one or other of the suggestions made by my right hon. Friend the Member for Crosby in respect of Clause 1.

I ask the Minister to look again to see whether he can be more forthcoming about the provision for parliamentary control.

Mr. Bishop

I take the spirit of the Committee on this matter. As the right hon. Member for Down, South (Mr. Powell) said, we are dealing with matters which will be subject to change, on which the House of Commons will naturally wish to put a point of view.

I should like to comment briefly on some of the amendments, for the convenience of the Committee. The effect of Amendment No. 3 would be to make Orders in Council under Clause 1(2) subject to the affirmative procedure, and the effect of Amendment No. 4—which,I take it, is an alternative—would be to make them subject to the negative procedure

While I am generally in agreement that the House of Commons should have the opportunity of discussing orders regulating sea fishing, whether within our own fishery limits or in respect of British vessels wherever they may be, I do not think that Orders in Council made under Clause 1(2) fall into quite the same category.

The power to specify British fishery limits by Order in Council has been provided because there are few areas where it is geographically possible for us to extend right out to 200 miles. Elsewhere we are obliged under international law to agree our boundaries with other countries whose fishery limits adjoin our own. In some cases, for example, the line agreed will not be a strict geographical median line but will be possibly a straightened line compensated so that the areas of sea on each side of it remain the same.

Mr. Hurd

I accept that that is the purpose of putting this provision for variation in Clause 1, but the power which the Government are taking is far wider than that. They could use it to change the 200-mile basis to something quite different.

Mr. Bishop

I accept that, but the House of Commons will have the opportunity of considering the general policy in relation to these matters.

Government Amendment No. 16 recognises the feeling expressed by the Committee in some of these amendments. Amendment No. 16 adds another subsection to Clause 2 with the result that orders made under the clause will be subject to annulment in pursuance of a resolution of either House of Parliament. The orders in question are made under subsections (1) and (4) of Clause 2. Amendment No. 16 carries out the intention of right hon. and hon. Members in putting forward Amendments Nos. 6, 11 and 32. I believe that this is a neater way of achieving that result. It was because of our wish to accept the spirit of Amendments Nos. 6, 11 and 32 that Amendment No. 16 was tabled.

I recognise that this is a change from the present procedure. I pay tribute to the right hon. Member for Crosby (Mr. Page) for all the work he does. I understand the feeling that in this instance, instead of the Government merely laying orders, matters should be available for debate. We therefore suggest that the negative resolution procedure should apply.

Mr. Grimond

I am sure that the Committee will be obliged to the Minister for the concessions he has made. I strongly support what was said by the hon. Member for North Fylde (Mr. Clegg).

I wish to refer to the procedure under Clause 3. I shall come to argue the pros and cons of licensing in due course, but the licensing system could make or break the fishing limits policy. It could totally depopulate islands in my constituency in certain circumstances. It is, therefore, vital that the House of Commons should have some control over orders made under Clause 3.

I understand that the Minister is prepared to give that control, but what he says applies not only to Amendment No. 16, but to Clauses 1, 2 and 3, and I understand that he will make the negative procedure apply also to those clauses. I find that extremely unsatisfactory, but at least it is something. I am not quite clear what the Minister has given. I am not certain that that was what he said. It is vital for certain communities, before their livelihood is put in jeopardy, that there should be an opportunity to raise the matter in the House of Commons.

Mr. Powell

We should be absolutely clear about what the Minister of State said. I understood him to be standing by his Amendment No. 16, in which case the negative procedure will be conceded for orders made under Clause 2, but there will be no negative or affirmative procedure for any other orders made under the Bill. The Minister accidentally suggested that his amendment would satisfy the object of the other amendments, but as it stands it does not do that.

If the Minister is saying that he will go further at another stage and accept the effect either of the amendments in the name of the right hon. Member for Crosby (Mr. Page) or of the much neater amendment that bears the number 32, no doubt the Committee would be satisfied, but he will not be able to satisfy the Committee by leaving matters as they stand with his Amendment No. 16.

Certain words fell from the hon. Gentleman that should not fall from a Minister. He said that the House would be able to debate the general policy. "General policy" is no help for the islands represented by the right hon. Member for Orkney and Shetland (Mr. Grimond). One cannot simply say that the House of Commons can debate the general policy but cannot consider its translation into specific law, whether by way of statute or by orders made under a statute. The whole purpose of the possibility of Prayers against an order or of the affirmative resolution procedure is that it enables the House of Commons to be the judge of the way in which an agreed policy is being applied specifically. I hope that the Minister of State will not use again his argument that we can dispense with the affirmative or negative procedure provided that we have been allowed an opportunity of considering the general policy behind what the Government intend to do.

Mr. Wall

I support the view expressed by the right hon. Members for Down, South (Mr. Powell) and for Orkney and Shetland (Mr. Grimond). Licensing and quotas are fundamental matters for fishing communities, even more so now that they are partially controlled by the EEC. It is essential for Members of Parliament representing fishing constituencies to have the right to put before the House of Commons or the Committee their views on matters which affect the livelihood of their constituents.

The Committee is not quite clear about what the Minister said. The expression of view on both sides of the Committee was that Clause 3 should be included under the affirmative or negative procedure. Is that correct?

Mr. Clegg

I understand the Minister's position to be that he sticks by his Amendment No. 16 and does not propose to go any further. That is a deplorable decision.

We have already discussed the effect of the words "or otherwise" in Clause 1(2). It has been argued by the Minister that those words give the Government very broad powers. The House of Commons should have some say, because it is at present vitally concerned with fishing limits and will be so concerned in future.

When we get down to the nitty-gritty of, Clause 3, it can be seen by looking at it in what way the livelihood of fishermen can be affected. For example, the new Section 4(4) states: An order under this section, if made with the consent of the Treasury given for the purposes of this subsection, may authorise the making of a charge for a licence under this section. That will impose what is virtually a tax on fishermen which the House of Commons would be unable to discuss as a specific matter.

The new Section 4(2) of the 1967 Act states: (2) Such an order may provide for exceptions from the general prohibition and may apply to fishing generally in the specified area or to fishing for sea fish of a specified description, by a specified method or during a specified season of the year or other specified period. All of us who have anything to do with fishing know how fierce the arguments can be about fishing methods—for instance, about the purse seine nets used off the South-West Coast. All these matters are the nitty-gritty, the practical things which will have an effect on fishermen. I cannot see why the Government

are being stubborn. If they cannot do anything about it today, I beg them to take the matter away and at a later stage give Parliament the power it requires. We see too much of Executive control and we are giving the Executive under the Bill, as unamended, vast powers over the lives of part of our community. It is time that Parliament stopped doing this and made the Executive accountable to Parliament.

Mr. Bishop

Perhaps the Committee was not quite as sensitive to what I hoped I had said as I would have wished. By tabling Amendment No. 16 the Government have admitted the importance of changing the procedure whereby the House of Commons has an opportunity of debate.

My general comment on debating policy generally was in reply to the comment of one hon. Member that the House of Commons would not have an opportunity to debate policy. There will be occasions when policy debates will and must take place following the vital changes that will come about in the next few months.

When I was propounding Amendment No. 16 I was dealing with Amendments Nos. 6, 11 and 32, which ask for a change in procedure. Amendment No. 16 was intended to tidy up what was intended by those amendments. Amendments Nos. 19 and 20 to Clause 3 seek to make orders under Clause 3 subject to, on the one hand, the affirmative resolution procedure and, on the other hand the negative resolution procedure There are other technical aspects concerning other amendments.

I hope that the Committee will accept Amendment No. 16 in my name. It meets the spirit of the three amendments I have referred to. I accept the spirit of the feeling of the Committee on this matter and recognise the strength of that feeling. I am prepared to consider all the other amendments before later stages of the Bill.

Mr. Clegg

I thank the Minister for what he has said, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause ordered to stand part of the Bill.

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