Department of Transport breaches own legislation
6th September 2023
An investigation by NUTFA has discovered that the Department of Transport (DoT) is in breach of its own legislation, which required it to publish a review of the Fishing Vessel Regulations, introduced in 2017, by 23 October last year.
The review is still outstanding, more than 10 months after this legal deadline.
In a one-line response to a series of written questions to the MCA from NUTFA, an MCA spokesperson said: “The post-implementation review is currently in progress. The report has not been published yet and is expected to be published in the next few weeks.”
The legal requirement for a review is contained within the Fishing Vessels (Code of Practice) Regulations 2017.
As well as stipulating a review of the implementation of the regulations, six clauses provide detailed requirements as to what it must look at, amongst other legal obligations on the secretary of state for transport. The deadline of 23 October, 2022 is followed by a similar requirement for reviews every five years after this.
Sarah Ready of NUTFA, who raised the issue with the MCA, said: “From the period of time that there has been a breach by the secretary of state, from 24 October, 2022 to the present, there have been a variety of instances by the MCA as to detention of fishing vessels, general enforcement and surveying of vessels.
“All of these activities as to MCA operation are within the provisions of the Code of Practice. There has therefore been a failure to assess whether the way of working up to October 2022 remains appropriate or should be adapted to comply with Section 21(6) of the legislation.
“I therefore ask on what basis the MCA and the secretary of state conclude that any enforcement, detention notices, etc. carried out from 24 October, 2022 onwards, which fall within the confines of the regulations, are lawful, taking into account the material breach by the secretary of state to comply with Section 21 as to review and publication.
“I would argue that the breach of the regulations by the secretary of state leaves the relevant MCA enforcement after this time unsafe due to the failure to review. I have written to the MCA, outlining my opinion that the failure to publish this review, which is now getting close to a year overdue, makes much of their current enforcement activity unlawful.
“I have had contact from many fishermen who have been in touch with me regarding a variety of MCA enforcement issues from the date of the failure of the secretary of state to comply with the Safety Code legislative requirements.
“This review is urgently needed, not just from a legal point of view, but for the many fishermen who would expect a review to conclude that much of the legislation is not working effectively, with recommendations for changes in the application of the Code of Practice that will not have any negative impact on safety, but huge benefits to fishermen.”
Text Of Legislation: Fishing Vessels (Code of Practice) 2017
Section 21 (2)
21. (1) The secretary of state must from time to time:
(a) carry out a review of the regulatory provision contained in these regulations, and
(b) publish a report setting out the conclusions of the review.
(2) The first report must be published before 23 October, 2022.
(3) Subsequent reports must be published at intervals not exceeding five years.
This story was taken from the latest issue of Fishing News. For more up-to-date and in-depth reports on the UK and Irish commercial fishing sector, subscribe to Fishing News here or buy the latest single issue for just £3.30 here.
Sign up to Fishing News’ FREE e-newsletter here.
