Commentary on provisions of Act Fishing opportunities Section 23: Power of Secretary of State to determine fishing opportunities
This section sets out the Secretary of State’s function of setting the maximum quantity of sea fish that may be caught by British fishing boats and days that British fishing boats may spend at sea during a specified period (e.g. a calendar year or any other such period specified for a specific catch quota or effort quota). "Fishing opportunities" refers to the maximum amount of fish that may be caught and the maximum number of days that may be spent at sea. This section replaces the current provision in EU law that allow the European Council to determine fishing opportunities for EU waters (of which UK waters are a constituent part). The provisions set out the Secretary of State function of determining the UK’s fishing opportunities, in accordance with the UK’s international obligations. These might arise under an agreement with the EU or with another coastal State. They might also arise because of the UK’s obligations under UNCLOS or as a member of an RFMO.
	Subsection (1) provides that the Secretary of State may determine for a specified period the maximum quantity of sea fish that may be caught by British fishing boats and the maximum number of days that British fishing boats may spend at sea.
	Subsection (2) requires that a determination under subsection (1) may only be made for the purpose of complying with an international obligation of the UK to determine the fishing opportunities of the UK. The purpose of this subsection is to ensure that the power to determine fishing opportunities relates to limited matters within the Secretary of State’s reserved competence.
	Subsection (3) allows for the maxima determined under subsection (1) to be determined for, or for fishing boats fishing for: different descriptions of sea fish; for different areas of sea; or for different descriptions of fishing boat.
	Subsection (4) provides that fishing opportunities under this section may not be determined by reference to a boat’s home port or connection to a particular part of the UK. The purpose of this is to ensure that the power could only be used to set fishing opportunities for the whole UK.
	Subsection (5) gives the meaning of "catch quota" and "effort quota".
	Subsection (6) allows for determinations under subsection 1 to be zero; to replace a determination that had already been made; or to withdraw a determination that had already been made. This provision would allow for changes to be made to determinations under subsection (1) over the course of a year to respond to environmental changes, depletions of fish stocks or for other purposes.
	Subsection (7) explains that a determination may not be made or withdrawn after the end of the period to which it relates.
	Subsection (8) creates a power for the Secretary of State, by regulations, to determine what is to be regarded as the number of days in a specified period that a boat spends at sea. Regulations under this power will reflect the varying technical conditions that may affect when a boat should be treated as fishing.
	Subsection (9) provides that the regulations made under subsection (8) may make provision by reference to provision made under paragraph 1(2)(c) of Schedule 2. That paragraph provides that licences issued to fishing boats may include conditions restricting the time the fishing boat may spend at sea.
	Subsection (10) provides that regulations made under subsection (6) would be subject to the negative resolution procedure.
	Subsection (11) provides that any reference in retained direct EU legislation to "fishing opportunities" in relation to British fishing boats are to be read as references to catch quotas and effort quotas.