We are the Environment, Housing and Infrastructure Scrutiny Panel. It's our role to scrutinise Jersey's government on matters of public importance, policy and legislation which falls within these three remits.
Background
A States Assembly decision [P.170/2020] made on the 27 December 2020 agreed that in order for Jersey to continue to have a trade relationship with the European Union (EU) post-Brexit, Jersey should participate in the UK-EU Trade and Cooperation Agreement (‘TCA’). This decision was based on summary terms of the TCA, as the full legal text was not made available until the morning of 24 December 2020 and there was insufficient time to scrutinise the detail before a decision on extension was required on 27 December. Given the tight timescale for ratification of the TCA, the UK and EU agreed a 90-day period, during which Jersey, through the UK, would be able to terminate its involvement in the agreement. The 90-day period provided time for further consideration of the detailed terms, including the final legal text.
The Panel's Review
Amendments to P.170/2020 requested that the Brexit Review Panel and the Environment, Housing and Infrastructure Scrutiny Panel present a report before the end of the 90-day ‘cooling off period’, which would consider the final legal text of the TCA and take advice from the Law Officers’ Department, in order to form a view on whether the full legal text reflected the terms of the summary agreement (P.170/2020). The amendment also asked that scrutiny include any other information that, in the opinion of the Panels, should be brought to the attention of the Assembly, including whether or not the Panels believe it is in the best interests of the Island to subscribe to the relevant terms of the UK-EU Trade and Co-operation Agreement.
The overarching aim of the Panel’s review was therefore to establish whether it is in Jersey’s best interests to subscribe to the relevant terms of the TCA, noting that maritime resources and goods are linked and must both be approved to ensure Jersey’s participation in the TCA. The goal of the review was to identify key issues for States Members to consider, following scrutiny of the full legal text, and to provide constructive feedback and recommendations for the Council of Ministers.
Our review has resulted in 30 key findings and 16 recommendations which we hope will provide useful feedback to the Council of Ministers and wider States Assembly.
Cessation of the Granville Bay Treaty
The TCA supersedes the former Granville Bay Agreement (GBA), although the Panel has found this does not affect the delineation of the maritime boundary between Jersey and France. The Maritime Boundary Agreement is distinct from the GBA as it establishes definitive international maritime borders between the UK and France in the GBA area for all purposes and not just fisheries access.
However, it is felt by Jersey’s Fishermen’s Association that under the terms of the Granville Bay Agreement, unfair and inequitable access arrangements have allowed French vessels to fish within 3 nautical miles (nm) of Jersey’s offshore reefs and islets without a reciprocal agreement for Jersey vessels fishing off French sovereign territories. There are concerns that should this inequity continue to go unaddressed this will continue to disadvantage Jersey’s fishing industry.
Opportunity to impose non-discriminatory management restrictions
Jersey’s inclusion in the TCA will mean that the management of its waters would now no longer be done jointly, as was previously the position under the GBA. Instead, Jersey will be entitled to manage its waters as it sees fit, within the general principles of Article FISH 4 of the TCA. This will include the ability to impose non-discriminatory management restrictions, on a scientifically justified basis. The Panel has recommended the Minister for the Environment should ensure that evidence is evaluated carefully in line with the criteria in Article FISH 10 of the TCA before determining which EU vessels are licenced to fish after 1 May 2021. The Panel considers this essential in order to ensure Jersey’s fishing interests are protected.
Sustainable fisheries management
A notable finding of the Panel’s review is that Jersey’s inclusion in the TCA represents an opportunity to better manage fishing activity in Jersey’s waters in terms of developing an ecologically and economically sustainable approach. The Panel has therefore recommended that consideration should be given to what measures can be taken to exercise powers under the TCA for the benefit of sustainable fisheries management and conservation. Furthermore, it is recommended that a Marine Resources Strategy should be developed to underpin sustainable fisheries management. The Panel considers that the proposed strategy should be developed and brought forward for States debate before the end of 2021.
Sustainable and equitable fishing access arrangements
It was also found that establishing environmental agreements over shared fishing grounds has historically been problematic and required careful negotiation to ensure buy-in from all stakeholders. The Panel has therefore recommended that following the 90-day cooling off period, the Government of Jersey should help facilitate industry-level discussion between French and Jersey fishermen to address any key concerns or issues arising from the new regime and access arrangements to Jersey’s waters.
The Panel is pleased to note that the TCA does not affect Jersey’s sovereignty over its offshore reefs and islets, but there remains some scope through the new licensing regime, to apply conditions on access to these areas in a non-discriminatory way, to ensure they are managed in a sustainable way that will benefit Jersey’s fishing industry in the medium to long term.
Impact of the changes to processes and procedures for the fishing industry
New procedures and processes have created additional administration and handling charges for the fishing and aquaculture industry, such as the States Vet inspecting and producing export health certificates. This work is creating extra costs with industry having to absorb these costs and which is likely to have an impact on their profitability in the short to medium term. Furthermore, it was found that a lack of resources at the States Veterinary Department to inspect exports and award health certificates is partly responsible for the delays being experienced by shellfish exporters under new trade rules. The Panel has recommended that this under-resourcing is addressed as a matter of urgency.
The Panel is disappointed to note that Jersey’s Government is not actively considering or pursuing the possibility of a dedicated post to support the fishing industry. Instead, support is proposed to be drawn upon from existing teams despite the fact that it is widely acknowledged that these teams are already under-resourced. As a result of this, the Panel has recommended that a business case be prepared, without delay, for a new, dedicated government post to assist the fishing industry with matters such as landing and export paperwork and identifying new export markets for Jersey-caught fish.
Jersey's export markets
It is evident that developing alternative markets for export to reduce the historic reliance on trade to France and Southern Europe should be a key medium-to-long-term objective for the fishing industry. However, this will require significant investment in infrastructure and marketing. The Panel has recommended that, in the short-term, Government’s priority focus must be on easing the flow of goods into France, especially at key ports such as Granville.
In addition, in order to future-proof Jersey’s fishing industry, steps must be taken to identify new export markets and investigate market diversification, such as exporting frozen processed shellfish. The Panel has therefore recommended that a proposed new Marine Resources Strategy includes a strategic economic framework for market diversification which encompasses new thinking on trade and export routes for Jersey-caught fish and suitable investment in infrastructure to help support this.
New licensing arrangements for EU vessels
The Panel has found that the TCA replaces existing fishing access arrangements with a regime based on EU vessels being required to demonstrate a ‘track record’ of fishing activity in Jersey’s waters, in order to be issued a licence to enable these vessels to continue to fish Jersey’s waters. However, it will not be possible to definitively assess the full effect on provisions for fisheries within the first 90 days, particularly in relation to the amount of boats that will be able to fish in Jersey’s waters or the conditions under which fishing activities may take place. Moreover, the process of collecting and evaluating evidence for EU vessels to demonstrate suitable track record is challenging and complex. Once evidence of track record has been received from vessels it will be important for Jersey’s Government to apply the criteria in Article FISH 10(1) precisely.
The Panel received evidence that the transitional amnesty and issuing of licenses to EU vessels between January – May 2021 has caused deep concern amongst stakeholders about the fairness of licensing processes after May 1st. Consequently, the Panel has recommended that the Minister for the Environment should reassure the fishing industry that licensing procedures from May 1st will be non-discriminatory towards the Jersey fleet, with the same requirements applying to both Jersey and EU vessels in terms of conditions around catch, data collection and any other rules and regulations.
It was further highlighted that the conditions around meeting licensing requirements represent a significant financial obligation for Jersey’s local fleet, who (unlike the EU fleet) do not receive Government subsidies to support local fishing interests. The Panel has recommended that in developing fair and equitable licensing conditions, the Minister for the Environment should be mindful to avoid discriminating against local fishermen by creating prohibitively expensive hurdles to attaining a license and seek to ensure the system is financially viable for Jersey fishermen. The Panel has suggested that consideration should be given to developing an appropriate grant system for the Jersey fleet.
Licensing conditions
As Jersey’s appointment as the licensing authority represents a positive opportunity to preserve and enhance the marine environment and address access and management issues around shared fishing waters, the Panel has recommended that careful consideration should be given to various conditions that should be attached to licences, to improve fisheries management and provide increased opportunities for Jersey’s relatively low impact fleet.
The Panel found that, historically, it has been difficult to enforce and collect data about the type and quantity of fishing activity taking place by EU vessels in shared waters, which has impeded the proper management and cultivation of fisheries. It therefore may be challenging for EU vessels to be able to completely or accurately demonstrate the historic extent and nature of non-VMS vessel activity, in accordance with new licensing conditions. The Panel has recommended that the Minister for the Environment should exercise caution when defining what evidence will be required to determine the ‘extent and nature’ of fishing activity that is undertaken. Moreover, the evidence required should not unnecessarily restrict fishing activity or trade but should ensure licensing is robust and promotes sustainable ecological and economic management of the fisheries through the imposition of appropriate conditions.
Another finding of the review was that whilst Jersey fishing licence holders are, by their nature, linked to Jersey’s economy, the same is not necessarily the case for French licence holders. The Panel has therefore recommended that consideration should be given to creating an economic link as a licence condition for all vessels fishing in Jersey waters, along the lines of those imposed in other jurisdictions (for example, a % of a vessel’s catch being landed in Jersey, or vessels being crewed by Jersey residents).
Jersey’s fishing industry currently receives no financial support from the Government with regard to licensing fees, safety equipment and vessel upgrades, unlike EU fishing fleets. Whilst the Minister for the Environment has confirmed that a support package is being looked at, the Panel considers that this is not being expedited fast enough. The Panel has recommended that Ministers confirm, without delay, what financial support can be made available to assist Jersey’s fishing industry in the immediate short-term.
Government resources and manpower: monitoring and enforcement of Jersey's waters
Another key finding of the review was that it is recognised by the Minister for the Environment that “more effort” will be required to ensure Jersey is adequately equipped to take enforcement action where unlicensed fishing vessels may attempt to operate in Jersey’s waters. It is also recognised that more efforts will need to be concentrated on marine science, monitoring and ensuring Jersey achieves what is required in order to have a sustainable fishery. However, the Minister shared his concerns with the Panel that the Marine Resources team is not adequately resourced in terms of manpower at present. The Panel notes that it is anticipated that a further Government Plan bid will be made in the hope of securing added human resources to bolster the team’s manpower.
The Panel has recommended that Government should work as expeditiously as possible to ensure Jersey is fully equipped to manage any issues of enforcement which might arise following the transition period.
Is Jersey's participation in the TCA in Jersey's best interests?
In order to assess whether Jersey’s continued participation in the TCA is within the island’s best interests, the Panel sought to understand what the implications would be if Jersey withdrew from the agreement. It was found that if Jersey took the decision to withdraw from the TCA it would have no formal relationship with the E.U. in relation to goods and customs. Tariffs would be imposed on all goods from Jersey into the E.U. There is also a perceived risk that Jersey (including its fishing industry) would find it more difficult to access European markets.
Moreover, Jersey’s withdrawal from the TCA within the first 90 days period would see a return to the Granville Bay Agreement, which would remove the rights of the Minister for the Environment to issue licences to vessels to fish in Jersey’s waters. Therefore, if Jersey terminated its inclusion in the TCA, it would need to address the concerns that exist around the Granville Bay Agreement and this would most likely require Jersey’s Government to commence negotiations on a new fishing arrangement with the EU. The outcome of this would be uncertain for Jersey.
In consideration of all the findings, it is the Panel’s view that the full legal text of the TCA reflects what was anticipated in the P.170/2020 summary text in relation to fisheries. Therefore, in consideration of the evidence presented and from what is known at the present time, it is considered in Jersey’s best interests not to trigger the cancellation clause of the TCA.
However, it is also evident from our findings that there are practical challenges that remain and will continue to remain under the TCA in terms of fisheries management. Moreover, there will be significant work to do to ensure the successful, practical implementation of the TCA at ground level and to ensure the fishing industry is sufficiently supported. Therefore, in the event that Jersey does continue to participate in the TCA, the Panel has recommended that the Minister for the Environment provide quarterly reports to the States Assembly culminating in a final main report in May 2022 outlining how, in relation to fisheries, Jersey’s participation in the TCA has developed in the first twelve months. The Panel requests that these reports include detail of how the licensing regime is working in practice, as well as any other operational effects of Jersey’s inclusion in the TCA. They should incorporate any stakeholder engagement and feedback and clearly note any successes or challenges faced.