FISHING NEWS ARTICLE: Emergency byelaws: What powers do IFCAs have?

Following the news that a Cornwall IFCA emergency byelaw to exclude over-12m vivier vessels from the district has been withdrawn, solicitor and qualified fisher Jo Pummery offers an insight into the legal background

It is well known that the 10 IFCAs have authority to make byelaws for the purpose of managing the exploitation of sea fisheries resources in their districts, and to achieve the conservation objectives of any MCZ in the district.

The power to make byelaws is granted under an act of parliament, the Marine and Coastal Access Act 2009. Byelaws do not take effect until they are confirmed by the secretary of state, the current role holder being Suella Braverman.

When an IFCA is proposing a new byelaw, a formal or informal consultation will take place. This is a public call for evidence, inviting views from stakeholders (government agencies and interested parties) on the proposed provisions of the byelaw, and discussion between parties regarding the available options. The IFCA is required to define the issues, develop and appraise the options, and then implement the chosen option. This process can take several years to complete.

Guidance for IFCAs to follow when making byelaws was issued by Defra in March 2011, when the IFCAs were established.

All byelaws are required to be accompanied by an impact assessment, which should set out the anticipated costs and benefits of the proposed measure, including the identified fisheries, nature conservation, sustainable development, and environmental, social and economic implications.

Once a byelaw is in force, it then has to be reviewed to assess its effectiveness.

However, on occasion there may be a requirement for an emergency byelaw to be made. This will be deemed necessary only if, firstly, there is an urgent need for the byelaw and secondly, the need to make the byelaw could not reasonably have been foreseen.

Emergency byelaws take effect without first being confirmed by the secretary of state and will usually remain in force for a period of 12 months, although this can be extended by a maximum of six months. However, notice must be given within 24 hours of the byelaw being made, and the secretary of state has the power to revoke the byelaw.

Emergency byelaws do not require the same consultation process to be undertaken and, as the use of the word ‘emergency’ suggests, they often need to be implemented very quickly, to deal with the urgent, unforeseen situation.

The effect of any byelaw will usually have an impact on fishing activities and businesses. This can sometimes be detrimental to fishers, in particular if it involves a prohibition or restriction. It is important, therefore, that an IFCA ensures, when making an emergency byelaw, that it has satisfied the preconditions as set out in the act.

It is crucial that the IFCA can demonstrate that the byelaw is based upon sound evidence. This is particularly important where an emergency byelaw is being proposed without any, or very limited, consultation with stakeholders. The IFCA needs to be ready to demonstrate that the measure required is proportionate, that it balances the interests and needs of all parties, and that it has considered alternative measures.

If there is incomplete, contingent or inaccurate data being relied upon, or if it cannot be established that there is an urgent requirement for the byelaw, the legal position is that it should not be progressed with on an emergency basis.

Without the usual consultation and scrutiny from the secretary of state, there is a risk that premature restrictions and prohibitions may be implemented through emergency byelaws, which could adversely affect income for individuals and businesses.

We understand that recently Cornwall IFCA provided notice of an emergency byelaw. Due to the perceived impact of this byelaw, which proposed to exclude over-12m vivier vessels from the district, the IFCA allowed a very short consultation period; however, this was just six working days.

Had it been made, the emergency byelaw would have had a major impact on a number of businesses and fishing vessel owners. With no prior notice, they were suddenly faced with the prospect of no longer being able to fish inside six miles, within a matter of weeks.

Not surprisingly, the proposal attracted a high level of responses and the proposed emergency byelaw has now been withdrawn, to the relief of some. The IFCA will now hold a wider, informal consultation, involving all relevant stakeholders.

Had the emergency byelaw been made, the affected stakeholders could have asked the secretary of state to revoke the byelaw and, if this had been refused, they could have applied to the High Court for the ICFA’s decision to be judicially reviewed. If successful, they would have been able to ask the court to make an award for their losses suffered as a result of implementation, as well as their costs incurred in bringing the proceedings.

Any petition for judicial review must be made without delay, as there is a relatively short time limit of three months to start proceedings, which runs from the date the decision to be challenged is made. However, this was not necessary on this occasion.