Sea Fish (Conservation) Bill

HL Deb 24 November 1992 vol 540 cc942-50

4.32 p.m.

Consideration of amendments on Report resumed on Clause 1.

Earl Howe moved Amendment No. 4:

Page 1, line 24, leave out subsection (5).

The noble Earl said: My Lords, in moving Amendment No. 4 I shall speak also to Amendments Nos. 6, 7, 8 and 9. On Second Reading I said that I hoped to bring forward an amendment enabling us to use satellite technology for the control and enforcement of the activities of vessels which habitually tie up abroad. This group of amendments fulfils that expectation. It also tidies up the Bill by bringing together in one section of the 1967 Act all the provisions concerning evidence to be used in court proceedings for licence offences.

I wish to explain how those various provisions work. First, I must make it clear that it is not necessary for us to make provisions in the Bill for vessels to carry transponders; that is, automatic recording equipment, to use the correct terminology. We already have the power to do that as a licence condition under Section 4(6) of the 1967 Act.

Amendment No. 7, however, provides for the data derived from or via automatic recording equipment, and being carried or used in accordance with licence conditions, to be available as evidence in any court proceedings for a licence offence. In other words, a satellite record showing a vessel's movements could be used as evidence in court proceedings of where that vessel had been between certain dates. For example, if a vessel reported that it was tied up in Den Helder in the Netherlands but the satellite records show that it was sailing in the North Sea at that time fisheries departments could prosecute the vessel owner or master for being at sea after he has been at sea for more than his permitted days. The amendment will therefore increase significantly the likelihood of bringing successful prosecutions against vessel owners or skippers for breach of the days-at-sea restrictions, particularly those vessels which do not tie up regularly in the UK.

Amendment No. 8 ensures that British sea fishery officers —our enforcement officers—have the powers to require the production of automatic recording equipment and records produced by it; to search vessels to ensure that automatic recording equipment is being carried and used in accordance with licence conditions; to examine and to copy any records produced by that equipment; and to seize and detain any such equipment or records when a vessel is detained in port. Without those powers it would be too easy for vessel skippers not to carry or to use the equipment or to tamper with it and thereby evade the control measure.

Those two amendments contain the main substance of our proposals. We have, however, taken the opportunity to tidy up the Bill and also to make some minor modifications to the Scots evidential provisions.

Amendments Nos. 4, 6 and 7 tidy up the Bill by removing the Scots provisions for Clause 1(5) and Clause 3(3) and including them in the new Section 4C, which is in Clause 4 of the Bill. This will bring all the evidential provisions together in one place in the Act.

Subsection (3) of new Section 4C expands the Scots evidential provisions by incorporating a detailed definition of the word "document". That will ensure that the term "document" also embraces other forms of record including data held on disc or tape, or in the form of maps, charts or photographs. I understand that case law in England already allows those storage media to be covered by the term "document", so the provision extends to Scotland only.

The amendments taken together are designed to strengthen our enforcement powers, in particular with regard to vessels tying up abroad. I trust that noble Lords will welcome them. The amendments will come into force in relation to offences committed one month or more after Royal Assent. I beg to move.

Lord Grimond

My Lords, I am somewhat ignorant about the electronic devices and about the law. I apologise because the questions that I wish to ask could have been asked in Committee but at that time my mind was on other matters. I understand that the clauses affect evidence of offences. Amendment No. 7 provides that, In any proceedings in Scotland… any document which constitutes or contains… shall be received in evidence without being produced or sworn to by any witness and shall be sufficient evidence of the matters stated therein". The Minister explained that the documents relate to all kinds of issues. Does that mean that any document can be produced to the court by anyone without that person taking any responsibility for it?

During my brief career at the Bar it was usual, if one produced a document for evidence, that a witness must swear that it was what it purported to be. Has that provision now gone by the board? It appears that any documentary evidence relating to any of the electronic devices is accepted and the person who produces it to the court takes no responsibility for it. That appears to be strange, but I understand that to be the meaning.

I also understand that there should be sufficient evidence of the matters stated therein. Certainly in Scots law and even in English law some aspects of the evidence will need corroboration. That provision also appears to have gone by the board. Therefore, am I right in the supposition that all the old customs of producing documentary evidence through a witness who swears that the document is what it purports to be and those relating to corroborative evidence have been removed?

Lord Carmichael of Kelvingrove

My Lords, I am speaking on the same theme as the noble Lord, Lord Grimond. It seems to me that as this provision applies to Scotland, it could cause a number of disputes in the courts. The noble Lord, Lord Grimond, referred to documents. We now understand that the records of satellites and so on are also included. All documents should be tested in court. This is a new type of document. The testing of such a document involves highly specialised and technical knowledge. That will obviously be available to the prosecution but will independent sources of analysis of those documents also be available? I believe that only a few fisheries officers and members of the Armed Forces will be specially trained and will have a complete knowledge of the reading and understanding of satellite pictures. I do not know whether satellite pictures are effective in mist or fog.

What defence is available to a skipper who claims that he was nowhere near the point at which he was alleged to be? How can the average person defend himself? We are not talking about written documents some of which can be difficult to deal with in court. This is a totally different field. Perhaps the Minister or the noble and learned Lord the Lord Advocate will enlighten the House as regards provisions available to the defence.

Lord Sanderson of Bowden

My Lords, what I have to say may impact on the carriage of satellite equipment as it affects Scotland. In the Banff sheriffs court last week it was decided that there was no legal obligation on a vessel to report in when it crossed the 4 degree West line. The sheriff ruled that as the boat was not fishing, it could not be covered by licence conditions which, in his view, apply only when the vessel is fishing.

Not only do I believe that that is serious from the point of view of regulating the 4 degree West line, it also has consequences for other regulations governing boats when they are not fishing. Perhaps my noble friend will consider this matter and discuss it with the noble and learned Lord the Lord Advocate. This may be an area which should be tidied up on further consideration of the Bill.

Earl Howe

My Lords, the best answer that I can give is to say that I shall write to the noble Lord, Lord Grimond, and other noble Lords on the points raised. I cannot deal with those matters in such a way as I would wish.

This clause refers to the log hooks which are required to be kept under EC obligations or, for example, documents that are required under the licence conditions. The amendment seeks to remove the need to corroborate that those log books are what they purport to be. The provisions do not prevent the defence or the Crown leading evidence that the record is flawed. It merely allows that in the absence of such evidence, the record should stand without corroboration.

The noble Lord, Lord Carmichael, asked how the average fisherman might defend himself. The fisherman will be able to call an expert witness on the reliability of satellites. As I understand it, this technology does not involve photographing from a satellite in orbit. It relies upon the transponder within a vessel and the satellite detecting that vessel by means of the transponder that is situated on the vessel. It is a slightly different kind of technology from that suggested by the noble Lord.

4.45 p.m.

Lord Grimond

My Lords, I am grateful to the Minister for saying that he will write to me. The point I make is extremely simple. If I am an advocate in a police court and I want to put in evidence a policeman's notebook, I must bring the policeman before the court so that he can swear that it is his notebook, that the entries were made at a certain time and so on. As I understand it, under this procedure matters can be put before the court without the necessity for corroboration and its validity will not be called into question at all.

Earl Howe

My Lords, I shall endeavour to respond to that point when I write to the noble Lord, Lord Grimond.

Lord Sanderson of Bowden

My Lords, before the noble Earl sits down, will he undertake to write to me on the point that I have raised?

Earl Howe

My Lords, yes, certainly.

On Question, amendment agreed to.

Clause 2 [Restrictions on time spent at sea—appeals]:

Earl Howe moved Amendment No. 5:

Page 3, line 19, at end insert: ("() As soon as possible after the end of every period of twelve months ending with 31st March during which it exercises functions under subsection (4) above, the tribunal shall send to the Ministers a report on the exercise of those functions: and the Ministers shall lay a copy of the report before each House of Parliament.").

The noble Earl said: My Lords, in tabling this amendment, I am fulfilling a commitment which I made in Committee to bring forward an amendment to replace Section 4C of Amendment No. 23 tabled by the noble Lord, Lord Mackie, and the noble Lady, Lady Saltoun. The amendment requires the Sea Fish Licence Tribunal to report to Ministers on its work over the preceding 12 months as soon as possible after 31st March. Ministers will be required to lay a copy of that report before each House of Parliament. If the tribunal has not exercised any function under subsection (4) of Section 4AA during the 12 months prior to 31st March, no report will be required.

I believe that this amendment satisfies fully the requirements of the noble Lord and the noble Lady by ensuring that honourable Members and noble Lords have access to an annual report on the work of the Sea Fish Licence Tribunal. I beg to move.

Lord Blease

My Lords, I welcome the amendment and in particular the fact that the Minister said that it will be an annual report because the amendment suggests that it may be a one-off report. I warmly welcome the fact that the Minister says that it will be an annual report.

Many of the problems arising from this legislation have resulted from the lack of proper consultative machinery with the industry. I am not saying that that does not exist at local or regional level. I know that in Northern Ireland there is a close working relationship between the Ministry of Agriculture's representative dealing with fisheries and the local fishermen.

On Second Reading I raised the fact that licensing, rather than decommissioning, is the key to conservation matters. The tribunals will have a great deal of work to do. We have heard about documentation and the way in which satellites will monitor the arrangements. The staff of those tribunals will be required to have up to date knowledge and information not only about global matters but also about regional matters concerning fishing. Therefore, the staff of the tribunals will require more than a simple legalistic viewpoint; a great deal of expertise will be needed.

I feel that the representatives required to sit on the tribunals should conduct consultations in the local regions in which the tribunals are being held. There are a culture and an ethos in regard to fishing which in many ways go back for centuries, and that must be reflected in what is contained in the licensing procedures. The amendment reflects also on Clause 8.

Having said that, I welcome the fact that it is to be an annual report and I accept the amendment.

On Question, amendment agreed to.

Clause 3 [Licensing of vessels receiving trans-shipped fish]:

Earl Howe moved Amendment No. 6:

Page 3, line 30, leave out subsection (3).

The noble Earl said: My Lords, I have already spoken to the amendment. I beg to move.

On Question, amendment agreed to.

Clause 4 [Supplementary regulations]:

Earl Howe moved Amendment No. 7:

Page 4, line 32, at end insert: ("Provisions supplementary to sections 4 and 4A-evidence. 4C.—

1. (1) Where automatic recording equipment—
   1. (a) is used in accordance with a condition included in a licence by virtue of section 4(6) or 4A(6) of this Act, or
   2. (b) is used to record information transmitted or derived from equipment used in accordance with such a condition,
   any record produced by means of the automatic recording equipment, or partly by those and partly by other means, shall, in any proceedings for an offence under section 4 or 4A, except proceedings in Scotland, be evidence of the matters appearing from the record.
2. (2) In any proceedings in Scotland for an offence under section 4 or 4A, any document which constitutes or contains—
   1. (a) an entry in any logbook kept, or purported to be kept, under an enforceable Community obligation relating to fishing activities, by the master of a vessel,
   2. (b) a declaration made, or purported to be made, under such an obligation—
      1. (i) as to fish landed, by the master of a vessel or by an agent,
      2. (ii) as to trans-shipment, by the master of a vessel,
   3. (c) information provided, or purported to be provided, under—
      1. (i) any condition imposed under section 4(6) or 4A(6), by the master, owner or charterer (if any) of a vessel and, in the case of any condition imposed under section 4(6), by any of those persons or by an agent,
      2. (ii) a requirement under section 4(7) or 4A(7), by the master, owner or charterer (if any) of a vessel and, in the case of any condition imposed under section 4A(7), by any of those persons or by an agent,
   4. (d) a record referred to in subsection (1) above or anything which purports to be such a record,
   shall be received in evidence without being produced or sworn to by any witness and shall be sufficient evidence of the matters stated therein or appearing therefrom.
3. (3) In subsection (2) above, "document" includes, in addition to a document in writing—
   1. (a) any map, plan, graph or drawing,
   2. (b) any photograph,
   3. (c) any disk, tape, sound track or other device in which sounds or other data (not being visual aids) are recorded so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom, and
   4. (d) any film (including microfilm), negative, tape, disc or other device in which one or more visual images are recorded so as to be capable (as aforesaid) of being reproduced therefrom.
4. (4) This section shall have effect in relation to offences committed after the end of the period of one month beginning with the day on which the Sea Fish (Conservation) Act 1992 was passed."").

On Question, amendment agreed to.

Earl Howe moved Amendment No. 8:

After Clause 5, insert the following new clause: ("Power of British sea-fishery officers. 1967 c.84. In section 15 of the Sea Fish (Conservation) Act 1967, after subsection (3) (under which certain powers listed in section 8 of the Sea Fisheries Act 1968 may be conferred by order on British sea-fishery officers for the enforcement of the Sea Fish (Conservation) Act 1967) there shall be inserted—

1. "(3A) The powers which may be conferred on any such officer by an order under this section shall include power to—
   1. (a) require any person on board the boat to produce— 948
      1. (i)any automatic recording equipment or transmitting equipment used in accordance with a condition included in a licence by virtue of section 4(6) or 4A(6) of this Act, or
      2. (ii) any record produced by means of such equipment, or partly by those and partly by other means;
   2. (b) search the boat for any such equipment or record, and require any person on board the boat to do anything which appears to the officer to be necessary to facilitate the search;
   3. (c) examine and take copies of any such record;
   4. (d) seize and detain any such equipment or record for the purpose of enabling that equipment or record, or any record which may be produced by means of that equipment, to be used as evidence in proceedings for any offence.
2. (3B) An order under this section shall not permit anything which is required to be carried on board the boat by a condition included in a licence by virtue of section 4(6) or 4A(6) of this Act to be seized and detained except while the boat is detained in a port."").

On Question, amendment agreed to.

Clause 9 [Commencement]:

Earl Howe moved Amendment No. 9:

Page 5, line 36, leave out ("and (4) to (6)") and insert (", (4) and (6)").

On Question, amendment agreed to.

Lord Gallacher moved Amendment No. 10:

Page 5, line 47, at end insert: ("() Within the period of 6 months beginning on 1st January 1997, the Ministers shall lay before Parliament a report reviewing the operation of this Act and its effectiveness as a method of conserving sea fish after consultation with fishing industry organisations.").

The noble Lord said: My Lords, Amendment No. 10 has a precedent in the Policy Holders Protection Act 1975, with which I was concerned although not as a Member of your Lordships' House. The circumstances of the Bill bear some similarity to the situation which existed in that Act when it was introduced all those years ago. I do not wish to take up the time of the House by reciting that history. Suffice to say that the insurance industry was wary of the new powers contained in the Policy Holders Protection Act, including the possible system of levies which it introduced. The review of the operation of the Act, upon which Clause 9 is based, was included in order to put at rest the fears of the insurance industry. In fact it succeeded in doing so. When the review took place after a period of operation, the industry was satisfied and the clause therefore achieved the purpose for which it was intended.

The Bill produces a similar unease in the fishing industry. It is primarily about conservation but it uses diverse means to achieve that objective—part decommissioning, reduced effort via tie up and limits on days at sea, an extended licensing system including small craft, an appeals tribunal and tougher fines. All that is against the background that fishers believe, whether rightly or wrongly, that enforcement of the common fisheries policy is less strict in other member states than here and is likely to remain so.

The review of the operation of the Act which the amendment suggests, with a report to Parliament following the review after four years' practical experience, in my opinion would give Ministers and the industry an opportunity to decide whether all was well with the Sea Fish (Conservation) Act, as it will be, or whether modifications were required. It is in those circumstances that we tabled Amendment No. 10, which will provide for such a review within a period of six months beginning on 1st January 1997. The proposal is modest. I hope that it is constructive, and I look forward to hearing the Minister's comments. I beg to move.

Earl Howe

My Lords, let me say straight away that I believe that the sentiments behind the amendment are both sensible and worth while. Assuming that the current MAGP ends in 1996—as I said in Committee, there is some uncertainty in that regard —the Government will need to have conducted a thorough review of the effectiveness of the whole fish conservation package, including the effort control regime.

We shall need to see how the Act has been implemented and how effective it has been. One of the aspects of its effectiveness will be the way in which conditions are imposed on licences, which should be foolproof. With the leave of the House, perhaps I may say in response to a point raised earlier by my noble friend that it embraces any technical matters such as the one that came up in the sheriff's court in Banff a few days ago. That ruling is being examined in some detail. In the light of the results, if it is considered appropriate to do so, the Government will come forward with an amendment at a later stage.

The Government will need also to consider what further measures will be required until the end of the century. As drafted, Amendment No. 10 does no more than require the Government to report their findings to Parliament after consulting with the industry. I am content to accept it in principle. With the noble Lord's consent, I shall bring forward a government amendment at Third Reading in slightly different form. On that basis I hope that the noble Lord will feel content to withdraw the amendment at this stage.

Lord Callacher

My Lords, I am grateful to the Minister for that response. In the light of his comments, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.