The National Assembly for Wales has legislative competence to pass laws relating to fisheries and fishing (pursuant to section 108 of, and paragraph 1 of Schedule 7 to, the Government of Wales Act 2006 (GOWA 2006)).
However, the National Assembly cannot legislate in relation to:
- the regulation of scientific or other experimental procedures on fish;
- import and export control, and regulation of movement of fish, apart from (but subject to provision made by or by virtue of any Act of Parliament relating to the control of imports or exports)-
(a) the movement into and out of, and within, Wales of fish and other things related to fish for the purposes of protecting human, animal or plant health, animal welfare or the environment or observing or implementing obligations under the Common Agricultural Policy, and
(b) the movement into and out of, and within, Wales of animal feedstuff, fertilisers and pesticides (or things treated by virtue of any enactment as pesticides) for the purposes of protecting human, animal or plant health or the environment.
- authorisations of veterinary medicines and medicinal products.
The Welsh Ministers are able to exercise a wide range of functions in relation to fisheries in relation to both Wales and the Welsh zone (see further below), including functions which allow them to make subordinate legislation.
The Welsh Ministers also have a large number of functions under the significant amount of subordinate legislation made under those Acts (including orders, regulations and byelaws).
Since 1 April 2010 the Welsh Ministers also exercise functions pursuant to the byelaws of the former South Wales Sea Fisheries Committee and the North Western and North Wales Sea Fisheries Committee (in so far as its district was within Wales). The byelaws formerly made by those Committees (pursuant to powers set out in the now revoked Sea Fisheries Regulation Act 1966) were saved and now have effect as if made by the Welsh Ministers in a statutory instrument by virtue of Article 13 of, and Schedules 3 and 4 to, the Marine and Coastal Access Act 2009 (Commencement No. 1, Consequential, Transitional and Savings Provisions) (England and Wales) Order 2010 (SI 2010/630).
The Welsh Ministers also have approval functions in relation to fisheries subordinate legislation (such as byelaws made pursuant to the Water Resources Act 1991, and Net Limitation Orders made pursuant to section 26 of the Salmon and Freshwater Fisheries Act 1975) made by the Natural Resources Body for Wales (Natural Resources Wales).
The exercise of fisheries functions by the Welsh Ministers in relation to Wales frequently involves consideration of the Welsh Ministers' environmental obligations. These include obligations pursuant to the Wildlife and Countryside Act 1981, the Habitats Directive (Council Directive (92/43/EEC)) and the Conservation of Habitats and Species Regulations 2010.
Transfer of functions
Before the devolution of power in 1999, much of the subordinate legislation relating to fisheries in Wales and the Welsh zone was made by the Secretary of State for the Environment, Food and Rural Affairs (or predecessor Ministers). Some of that legislation remains in force. The functions of the Secretary of State (pursuant to both the Acts and the underlying subordinate legislation) were transferred to the National Assembly for Wales (as constituted under the Government of Wales Act 1998) in 1999. The initial (and largest) transfer of functions was made by virtue of the National Assembly for Wales (Transfer of Functions) Order 1999 (SI 1999/672), although there have been a number of further (and smaller) transfers.
This initial transfer of functions order included most of the functions of the Secretary of State to make secondary legislation under the key legislation on fisheries in existence at that time and, consequently, since 1999 a large body of fisheries subordinate legislation has been made in relation to Wales by the National Assembly for Wales (as constituted under the 1998 Act) and, since the coming into force of the Government of Wales Act 2006, the Welsh Ministers.
Implementation of EU law
In relation to the implementation of European fisheries requirements, the Welsh Ministers have been designated under section 2(2) of the European Communities Act 1972 to make subordinate legislation to implement various EU obligations relating to the Common Fisheries Policy (which is part of the Common Agricultural Policy). The Welsh Ministers' current designation in relation to the Common Agricultural Policy is contained in The European Communities (Designation) (No. 5) Order 2010 (SI 2010/2690). That designation is subject to several important limitations, although they are rarely of relevance to fisheries matters. For fisheries purposes, the Welsh Ministers' designation applies in relation to both Wales and the Welsh zone (see further below).
A number of pieces of subordinate legislation implementing European fisheries requirements in relation to Wales and the Welsh zone have been made by the Welsh Ministers (pursuant to the powers described above) and, primarily in relation to instruments made before 1999, the Secretary of State pursuant to the designation for the purposes of section 2(2) of the European Communities Act 1972 (set out in the European Communities (Designation) Order 1972 (SI 1972/1811)). Although the Welsh Ministers have been designated, the Secretary of State may still make legislation pursuant to his Common Agricultural Policy designation in relation to Wales and the Welsh zone as the Secretary’s designation is not territorially limited.
The Welsh Minsters have the power to make provision for the enforcement of EU restrictions and obligations pursuant to section 30 of the Fisheries Act 1981.
Fisheries is one of the few areas where the Welsh Ministers are able to exercise powers beyond the ordinary statutory geographical delineation of Wales. The definition of 'Wales' introduced by the Government of Wales Act 1998 and reiterated in the Government of Wales Act 2006 includes the landmass of Wales and the first 12 nautical miles of sea (known as the territorial sea). British fishery limits, however, extend (for present purposes) to the median line in the Irish and Celtic Seas. This resulted in the Secretary of State for Environment, Food and Rural Affairs (and the predecessor Ministers) being responsible for fisheries functions in a wide strip of water off the West Wales coast, beyond 12 nautical miles but within the Welsh half of the Irish and Celtic Seas.
In order to better manage fisheries resources, section 42 of the Marine and Coastal Access Act 2009 made a number of amendments to the Government of Wales Act 2006 to introduce the concept of the 'Welsh zone'. The Welsh Zone (Boundaries and Transfer of Functions) Order 2010 (SI 2010/760) specifies the boundaries of the 'Welsh zone' and provides that from March 2010 certain functions connected with fishing, fisheries and fish health are exercisable by the Welsh Ministers in relation to that zone. The Welsh zone includes all of the sea area within British fishery limits and the boundaries specified in that order.