Quota Again

We are now in the final week of the Brexit talks on fishing before the UK Government’s self-imposed guillotine comes down.

I won’t speculate on whether or not there’s going to be a deal. In the event of there not being one the legal position of the two sides can be quite simply stated. It would mean that (a) the UK has exclusive control over fishing in the UK's part of the EEZ and the EU in their part but (b) excluding foreign owners of quota is likely to trigger claims for compensation by the owners against the UK Government. Here are two pieces of legal opinion that support these statements.

Regarding fishing: Opinion of Professor Robin Churchilll, Emeritus Professor of International Law, University of Dundee for the Scottish Fisheries Federation.

“My answer to Question 2 can be simply and unequivocally stated. Other EU Member States have not accrued any rights to fish in the UK’s EEZ that will survive the UK’s departure from the EU. If it can be shown that the EU will suffer economic dislocation when its vessels that have habitually fished in the UK’s EEZ are no longer able to do so post Brexit, the UK should consider giving the EU access to that part of the allowable catch surplus to the UK’s harvesting capacity. The same will apply, mutatis mutandis, to fishing by UK vessels in the EEZs of other EU Member States. 24. Of course, post Brexit it would be always open to the UK to permit EU vessels to fish in its EEZ in exchange for the access of British vessels to the waters of other EU Member States. However, that is a completely different matter from the issues in Question 2, and accordingly I will not speculate on the likelihood or desirability of such a possibility.”

This, of course, is precisely the position put out in UK Parliamentary briefing papers, but it’s useful to have an independent opinion backing it.

Regarding Quota as a “possession”: In the case of UK Fish Producers Association v Secretary of State for Environment Food and Rural Affairs, in the English High Court in 2013, we find

Mr Justice Cranston saying:

“109 Are fixed quota allocations possessions?The concept of a possession for the purposes of article 1 of protocol 1 of the ECHR has an autonomous meaning and is not limited to ownership of physical goods. "[C]ertain other rights and interests constituting assets can also be regarded as "property rights", and thus as "possessions", for the purposes of this provision": Centro Europa 7 Srl v Italy (2012) 32 BHRC 417, [171]. There a legitimate expectation of being allocated a broadcast frequency, linked to the property interest of a broadcast licence, was held to be a possession: [179]. A seminal decision in the Strasbourg jurisprudence is Tre Traktörer AB v Sweden (1989) 13 EHRR 309, where the court found that the withdrawal of a liquor licence had had an adverse effect on the goodwill and value of a restaurant. These economic interests connected with the running of the restaurant were possessions within article 1 of the first Protocol: [43], [53]. There must be a reasonable and legitimate expectation as to the lasting nature of the right: Gudmunsson v Italy (1996) 21 EHRR CD 89, 89.

110 In a well known passage in R (Nicholds) v Security Industry Authority [2006] EWHC 1792 (Admin); [2007] 1 WLR 2067, Kenneth Parker J (as he now is) invoked as a test whether licences or permissions have a monetary value and can be marketed for consideration, either through outright sale, leasing, or sub-licensing. Thus milk quotas and certain spectrum licences fell within the concept of possessions in article 1 of protocol 1, but not licences or permissions which were neither marketable nor had been obtained at a market price, even though they had a value to the holder because, without them, it could not carry on the licensable activity: [74]-[75]. That approach has been approved in both the Court of Appeal in R (Malik) v Waltham Forest NHS Primary Care Trust [2007] EWCA Civ 265; [2007] 1 WLR 2092, [42]-[44] and the House of Lords in R (Countryside Alliance) v Attorney General [2008] 1 AC 719 [22], per Lord Bingham. In Malik a medical practitioner was suspended from the performers' list entitling him to practice within the NHS. The Court invoked the distinction between goodwill, which is a possession, and an expectation of future income, which is not. In that case there was a legal prohibition on selling the goodwill in a doctor's practice. Thus it had no economic value, so that the personal right of the doctor to practice through inclusion on the performers' list was not a possession: [29], [40], [65], [73], [86].
111 In its submission that neither quotas not fixed quota allocation units could be possessions under the Convention or the Charter, the Interveners invoked the principle that fishing stock is a right held by the public. It necessarily follows, in their submission, that permissions to fish cannot be privately enjoyed as a property right and therefore cannot constitute a possession, especially when they have been conferred on fishermen free of charge. While accepting that fishing licences and, once allocated, fishing quota, may be possessions for the purposes of article 1 of the protocol 1, the Secretary of State contended that fixed quota allocations do not qualify. They are no more than a tool, an abstract unit of measurement, and do not give rise to an entitlement to a precise amount or share of quota. Given their design they are no more than a representation of a vessel's track record for quota species caught between 1994 and 1996. In these submissions fixed quota allocations may represent a hope of a future allocation of quota, which falls within the scope of administrative discretion. The trade in fixed quota allocations occurs outside the Rules; the reconciliation exercises are in effect a pragmatic policy in the nature of an amnesty; and however banks, tax authorities or others might treat fixed quota allocations, that had nothing to do with their legal character or the legality of a transaction involving them.
112 For better or worse the concept of possessions has been given an expansive interpretation. The claimant's analogy with the English law notion of profit a prendre does not hold up since no one can own the fish of the sea. Moreover, the term possessions had an autonomous meaning in European law so reference to English law concepts is not helpful. However, Rule 3.3 recognises, albeit in limited circumstances, that fixed quota allocation units can be transferred separately from a fishing licence entitlement. The reconciliation exercises have given recognition to the trade in fixed quota allocation units occurring outside the ambit of the Rules.
113 And the reality of the situation is that, albeit built very much of sand, there is a trade in fixed quota allocation units. As seen earlier in the judgment this has attracted official recognition time and again. Units are not only traded but also used as security for bank finance. Valuers place a figure on them even if the methodology is relatively opaque. The tax authorities have seized upon the economic reality to treat them as a capital asset where disposal is capable of generating a capital gain. To use the language in Nicholds, fixed quota allocation units have a monetary value and can be marketed for consideration. In my view fixed allocation quota units are possessions falling within Article 1, Protocol 1 of the Convention and article 17 of the Charter.”
Having stated what the law seems to say, let’s think about what may happen in practice.

Despite all the rhetoric about “Getting back Control” will the UK Government expose itself to claims for compensation from the owners of quota, who can no longer legally fish? I don't see the latter taking that risk, given that much quota is owned by the strongest supporters of Brexit.

If these, mainly very large, vessels continue to fish as before, does the UK possess ships to police and perhaps stop them? We don’t any longer have the fast Customs cutters we had pre-EU.

Does the UK possess the will to stop them? Matters may well continue pretty much as before, but perhaps with product destined for EU consumers being landed on their side of the North Sea.

Will the UK Government permit EU vessels to land here the cod, caught mainly outwith the UK sector, that the British public like to eat? It takes time for ingrained eating habits to change.

There are strong incentives on both sides to turn mutual blind eyes and simply allow business as normal. We could then be heading towards a form of anarchy on the high seas, leading to nasty conflicts in some areas, such as the English Channel.

Fisheries yet again!

There's another update from Jill Rutter on fisheries, that can be accessed here:

UK and the EU

I've posted a comment as follows:

As we all know, the EU is constitutionally unable to compromise on the basic principles, whatever apparent concessions M Barnier may be able to offer. As he keeps saying, it’s the UK that wants to leave the club.

Acknowledging UK sovereignty is the most obvious of possible concessions. It’s a dreadful concept that’s been causing chaos since the time of Grotius, totally unsuited to a modern interdependent world. That the UK, uniquely, lacked a written constitution created a problem for constitutional lawyers that was resolved decades ago in a typically English way by not talking about it. For the EU to acknowledge that it “exists” would change nothing of substance. It would leave all the issues around catch, quota, landing rights, exporting and certification unresolved. There is no possibility of this being achieved within the next six months.

Assuming no-deal with either no agreement on fisheries or a basic deal with fisheries handled per Mr Frost’s current, very basic, draft, certain things will still exist in the real world. The fish will still be swimming, the existing fleets will, along with the processors and delivery chains, still be based in the same ports. Importantly the British public will still want to eat what they are used to, cod rather than mackerel, for example, most swimming outside UK waters.

There is plenty of law supporting the idea that fishing quota is a right of property entitled to protection under the ECHR, which cannot be removed without compensation. In any event the biggest owners of quota have been among the strongest supporters of Brexit, see the Tory gains in Scotland’s North east. It’s difficult to imagine the Johnson regime signing their rights away.

As your recent research paper confirms, the three non EU fishing states, Norway, Iceland and the Faroes, have not allowed non-nationals to own quota or vessels. By contrast the UK, along with some but, I think not all, EU member states has, so that 80% of English quota and an unknown fraction of Scottish is now foreign owned. Add the fact that the biggest ships are owned via entities often controlled from abroad or behind tax havens, often with big mortgages from UK taxpayer-owned banks. They can and do fish anywhere, land where it suits them and regard regulations as being there to be got round. Anyone thinking that foreign supertrawlers will vanish from our coasts next year is in for a surprise.

While the foregoing suggests no change for the largest, richest owners, the outcome for the smaller vessels and the people who depend on them looks dire. Most of the fleet on the Scottish West coast, where I live, consists of smaller vessels, mainly fishing non quota species, plus a contingent of specialist shellfish divers. They are already facing destitution due to Covid 19, which has blocked delivery chains. The tests and associated expense and paperwork that are coming with Brexit are likely to kill them off for good. To date David Frost and his team have completely ignored this forthcoming disaster, nor have they engaged with any representative from the area.

Brexit and Fishing - The Latest

Brexit and Fishing - The Latest

We’re at the end of another week and there’s been no progress on fishing. There are only twelve working days left to the self-imposed deadline.

The research group “The UK in a Changing Europe” has just published an excellent analysis of the issues around fishing and it makes depressing reading. The link to the full report is here: Brexit and Fisheries

There are some very interesting disclosures. As the UK seeks to obtain a position similar to that enjoyed by the three non-EU countries, Norway, Iceland and the Faroes, the report points out that those countries have carefully ensured that the benefits of their respective shares of fishing rights belong to their own nationals, by ensuring that vessels registered are also owned entirely or mostly by them.

As I’ve written before, the UK along with most other EU member States has permitted unrestricted ownership of both vessels and quota. Allowing people to benefit from something initially given out by the State for free was never a good idea, but tied in with the neo-liberal views of the Tories and Blairite Labour. With the UK out of the EU it looks like a form of insanity, because effectively the UK’s negotiators are trying to secure benefits for a “British” fleet a significant percentage of which isn’t British at all. Anyone thinking that after Brexit they’ll see the end of Dutch supertrawlers is in for a nasty surprise.

The final section contains very stark warnings for anyone who thinks that Scottish politicians will have much say in what happens after Brexit. Perhaps some of the Tories who gained seats in the North East by promoting the “benefits” of Brexit will be allowed to flex their tiny muscles, perhaps not.

What is tragically clear is that for the vast majority of Scottish boats, who (a) fish on the West coast (b) fish non-quota species and (c) export to Europe the outlook is totally bleak.

The final section of the report is worth quoting in full.

“Implications for devolution

Leaving the CFP and developing a new approach to fisheries policy presents challenges for the UK’s devolved settlement. Fisheries policy is a devolved competence, meaning in Scotland, Northern Ireland and Wales it is up to up to the national administrations to decide on policies and how to enforce them. However, successful fisheries policy requires administrations to engage in international negotiations on shared fish stocks with neighbouring countries and international trade. These functions are not devolved and power in these areas remains firmly within the UK government’s control. As an EU member state, the CFP provided a general framework within which fisheries could be devolved, and leaving the CFP removes this common reference point. As the UK seeks to develop its own approach to fisheries, there is the potential for it to expose tensions in the relationship between the UK government and the devolved administrations. If the UK is to develop a successful postBrexit fisheries policy, these barriers will need to be overcome. As noted at the start of this report, the fishing industry varies in scale in each of the nations of the UK and has very different interests. On the one hand, this variation highlights the limits to a ‘one-size-fits-all’ approach to future fisheries policy. But the need to engage in areas outside of the devolved nations’ competence, along with the fact that UK fishing vessels can fish anywhere in UK waters regardless of where they originate, also highlights the need for cooperation across the UK. To achieve this, the government has proposed that fisheries be subject to a ‘common framework’. The Fisheries Bill proposes to achieve this through Joint Fisheries Statements, in which the UK fisheries administrations jointly set out their policies for achieving key objectives. The bill also sets out powers for the devolved administrations in a number of areas, including licensing and marine conservation. Yet the proposed legislation also sets out that fishing opportunities will be decided at the UK level (albeit in consultation with the devolved administrations). An effective UK government veto over what is decided at the international level has also been criticised: it has been a point of tension with the devolved administrations, particularly with Scotland. As the dominant player in the UK’s fishing industry, Scotland has called for a greater say in how UK fisheries policy is made and for a seat at the table in negotiations with neighbouring coastal states.

Overall, while there is common agreement on the need to work together on fisheries policy, the process involved and who should have influence remains contested. As the UK government handles English UK fisheries directly, there is a worry in some quarters that UK fisheries policy may become dominated by English interests. While the size of the Scottish fishing industry should protect it, there is a fear that the relatively small size of the Northern Irish and Welsh fishing industries will see their interests lose out. The Conservatives have been able to appeal to fishing interests in the devolved nations, particularly in Scotland, where it is argued that their stance on fishing has helped them to win a number of coastal constituencies, but their voters will want to see their promises delivered on. The implications for devolution go beyond territorial politics. Even with cooperation, it will be up to the devolved administrations to implement and administer policy. Scotland has invested significantly in its ability to govern fisheries policy. Marine Scotland has significant policy making and scientific capacity in this area. However, this scale of investment is not matched in Northern Ireland or Wales, where administrative and scientific capacity is much smaller. Transferring policymaking powers from Brussels to these devolved administrations will need to be backed by the necessary resources. A long period without a devolved government in Stormont has also led to Northern Ireland’s voice and interests to be largely overlooked. The situation in Northern Ireland is further complicated by the question of the border, or in the case of fisheries the lack of an agreed maritime border between Ireland and Northern Ireland. Whatever happens, once the future regime is settled, all four governments will need to work together. Fisheries has become a disproportionally ‘loud’ area of policy dispute since the 2016 referendum, which has seeped into constitutional politics. This has put the day-to-day working relationships of officials at the devolved and UK levels (particularly between Marine Scotland and DEFRA) under considerable strain and led to a lack of communication and cooperation at the political level. For any post-Brexit settlement to work, those functioning relationships need to be re-established to allow effective cooperation.”

More on the Grey Seals

Yesterday’s post on the shooting of seals and the use of scaring devices attracted a lot of interest, having been read by around 600 people up to now. The link was also posted on Twitter, which provoked some responses.

The parties to the following exchange were Kenneth McNab of the Clyde Fishermens Association, the doyen of the Clyde fishing fleet and someone I greatly respect for what he’s done for the Tarbert community over the years, (KMcN), Arthur Scargill, who really needs no introduction (AS) and myself (EGK).

“(KMcN): I find it strange that in among all that waffle there is no reference as to why the seal population is increasing at an alarming rate. This is very worrying as the seal is by far the biggest predator to all other species under threat and may become extinct down to the seal

EGK: Or possibly shifting their habitats? Is it possible that grey seals are shifting to more inshore locations? Their rates of reproduction seem relatively static. Serious question whether anything can/should be done compliant with UK and US regs. What do you suggest?

KMcN: Seal numbers are increasing all over the west coast and in Ireland inshore and offshore . Research has already been done in Strathclyde uni on how they have affected cod stocks on the west coast . Equivalent of deer on the hills if left will end in tears

EGK: ... I’d like to read that. I entirely agree about the deer, by the way.

AS: No vague or trivial matters here, this is very informative for those who are not as involved.
Please quote the source of the “alarming” seal increase.

KMcN: Strathclyde University Prof Robin Cook

AS: Cod. So what has this got to do with the current bill change to align with US welfare laws?

EGK: Nothing to do with US welfare laws, but underlines that whatever else is tried to reduce any impacts shooting isn't an option.

K McN: I didn’t say it had.

The article said there were less seals could you give me your evidence

EGK: The link to the study is here: Strathclyde University You will see that they found the economic impact relatively minimal and balanced against revenue from other sources, e.g. tourism, which is the main driver of coastal economies.

I was puzzled at the "alarming increase" because grey seals breed once per year and usually produce one pup. The Strathclyde University study showed that while there was an increase after 1980 the population is now steady at around 30,000, which is why I suggested they might be moving their habitats, which would explain an increase in one area above what would be naturally possible. Need to check if SNH have done another helicopter survey recently.

KMcN: They more than likely have given someone a grant to do it to get the desired outcome

KMcN: Your group campaigns for the recovery of demersal stocks yet you don’t want to do anything about the biggest predator then you say the tourism economy is more important is that not a bit selfish I thought conservation was at the heart of your group”

Just to clarify, the group that I’m only part of is simply the several thousand of us along the coast who are interested in and campaigning about the environment. I have no interest in the tourism industry, but it’s a fact that it’s the main economic driver, as I wrote.

A year or so I had another exchange with Kenneth in relation to grey seal populations, which do indeed seem to be growing around the Clyde.

I duly obtained data from SNH under Freedom of Information. It turned out that there is in fact a great deal of information being collected pretty constantly on seal populations. The link below should direct you to a report from 2018 from the Scottish Oceans Institute at St Andrews University. It’s a very comprehensive crash course for anyone who wants to know about seals. From the mass of detail I’ve extracted a few details that I think are useful.

The United Kingdom is currently home to about 38% of the World grey seal population and about 88% of those live in Scotland. As at 2015/17 the Scottish population was about 150,000, mainly concentrated in the Outer Hebrides and Orkney. There are about 30,000 on the west coast.

Mature females, from about five years of age, will typically produce one pup per year. Survival then depends on the nature of the haul-out. Overall this has resulted in a slow yearly rise in the overall population.

Mature adults weigh up to about 300 kg and eat between 4 kg and 7 kg per day.

The survey does not indicate any breeding sites in the Firth of Clyde, but plainly there must be some, as it’s extremely unlikely that grey seals from, say, the North west corner of Mull, would be venturing round the Mull of Kintyre and foraging in the Firth of Clyde.

The following that came from the Bute Museum is interesting, but extremely out of date:

“Grey Seal Halichoerus grypus
(UK: Native, common and widespread around the coast.)

Gibson (1970) recorded seeing two Grey Seals in the sea south of Garroch Head in early May 1967. This is the first recorded sighting of Grey Seal within Bute waters. However by 1976 Jack Gibson was able to report that ‘within the last five years Grey Seals have been seen very regularly just off Bute shores, particularly around Garroch Head and other parts of south Bute’. Gibson had also by then seen Grey Seals between Bute and Inchmarnock and been told of sightings near Rhubodach.
In 1990 Gibson reported that in contrast with Common Seal, within the previous 15 years the Grey Seal, once quite rare in the Clyde, had become widely and commonly distributed throughout the entire Clyde sea area and that the population had increased dramatically. On Bute there were by 1990 regular gatherings of Grey Seals at Garroch Head throughout the year and the species was being seen commonly offshore at many places, around the south, off Rhubodach, down the west Kyles and near the north-west of Inchmarnock.
Grey Seal pup production is used to estimate the total size of the British population. Since pup production monitoring started in the 1960’s the number of pups born throughout Britain each year has increased consistently, in Scotland alone the average annual pup production increased by 2.2% between 2005 and 2010. However in recent years a significant reduction in the rate of increase in pup production has been seen, this is clear evidence that growth is levelling off (SMRU, 2011).
Locally, Grey Seal has possibly increased further in numbers since 1990, being now fairly common around all Bute shores, although continuing to be outnumbered by Common Seal, but see the comments under Common Seal, including Billy Shields’s count in 2009 of 156 seals at Scalpsie Bay, the majority of which were Grey Seals. On 14th July 1991, Ian Hopkins counted a group of 8 hauled out at Garroch Head and on 18th August 2000 he counted 7 at Bruchag Point.
In May 2009 Billy Shields obtained a photo of a seal pup with an umbilical cord, at Scalpsie Bay, where it had obviously recently been born. Although more often than not, Grey Seals give birth, in the early months of winter, Jane Dodd, the Marine Project Officer at SNH, identified it as a Grey Seal pup.”

What this all suggests is that there may be an information vacuum regarding the inshore populations and the extent to which grey seals are migrating. This would be bad news for the smaller harbour, or common, seals, as the greys victimise them and compete for food. They number only about 26,600 in Scotland and are far more endangered. Main causes of decline include being more exposed to toxins and pollution, entanglement in debris, and being shot by fish farms.

To summarise, there is no evidence of an “alarming increase” in grey seal numbers, but there may be local migrations. I shall write to St Andrews University and suggest that the next survey should look specifically at the Firth of Clyde.

What’s clear is that given the protected status of seals internationally and the concentrations in Scottish waters there is no chance of controlling populations by shooting them.

Deliberately or Recklessly Harassing Wild Animals of a Protected Species

The heading is taken from the “Conservation (Natural Habitats, &c.) Regulations 1994”, which make offences of activities such as the seal shooting and the deafening of whales, porpoise and dolphins that are rife along Scotland’s West “Aquaculture Coast”. But each year since 1994 these practices have been going on, with dozens of seals shot and about 150 seal screechers, alias whale deafeners, in use. Read to the end to find out what’s going on; this long post ends with a surprise!

Before aquaculture arrived in force our coastal skerries were home to thousands of seals, while porpoises and dolphins were common and occasionally whales were seen close inshore. These were a significant part of the visitor experience Scotland was able to offer, keeping tourists returning and employing locals providing wild life tours and excursions.

When cages full of salmon arrived in their home territory it was for the seals as if Christmas had come not just early, but every day. With salmon cages consisting of just a single piece of netting, often not in the best condition, it was too easy for them to crash against the net, grab a bite of salmon and depart. The local companies reacted by shooting them, with the result that in most of the waters of, for example, Seil, Shuna and Melfort, seals are now only occasionally seen. It seems that only relatively inaccessible spots have been safe, for example in the Cuan Sound, where there are usually a few families hauling out.

From Day One there has been a very simple solution to the problem of seal predation, to fit a second net outside the inner one and tension both to keep them apart. The outer net can be of a very wide mesh, as it only needs to be seal proof, not salmon proof. Wildlife experts like David Ainsley have been campaigning for these to be made compulsory for years, but only a small number of operators have adopted them. They are of course significantly expensive and have to be properly maintained.

Public outcry, coupled with the activity of seal warriors such as Mark Carter’s Marine Concern, plus various petitions to the European Commission, resulted not in, as you might expect, shooting being banned, but in it’s being allowed under licence. Companies were now supposed to go through the motions of finding out which seals were “guilty” of trying to access their natural food in their own habitat and only condemn those ones to death. As with every other aspect of aquaculture regulation companies are trusted to be honest about this. It seems that some politicians do believe in fairies.

Given that there was a safe and humane option it’s strange that shooting was allowed to continue, even under licence. Operators realised that eventually it would be banned and started to develop an alternative, screeching devices to scare seals off by frightening them. There are now many different designs of these on the market, some emitting random and loud noises, some continuous ones. Generically they are referred to as Acoustic Deterrent Devices (ADDs).

By the way, there seem to be two problems with ADDs. First, there is growing evidence that they are actually useless and suggestions that there may even be a “dinner bell” effect. Second, there has been evidence for at least ten years that the use of ADDs deafens marine cetaceans that depend on their hearing for navigation and social interaction. While we don’t know for sure, it’s possible that this has been responsible for the increasing incidents of whale strandings along the aquaculture coast.

But isn’t deafening whales also “deliberately or recklessly harassing” a protected species? Of course it is!

Freedom of Information requests have shown that at any one time Marine Scotland have granted about fifty licences to disturb protected marine mammals in other industries such as the construction of offshore wind farms, harbour developments and oil rigs.

But not one has been issued to the operator of any fish farm.

The reason is simple, licences are only granted when disturbance is necessary and can’t be avoided. You simply won’t get a licence when you can keep the seals out by fitting the second net, as described above.

On 25 November 2019 a group of environmentalists met with Marine Scotland to explore our concerns that about 150 ADDs are currently in use on west coast fish farms, openly without any attempt at concealment and unlicensed. Operators are commonly obtaining planning consent to instal the devices and while it’s possible that they believe such consent obviates the need for a licence to use them there is no provision in any legislation to this effect. Permission to instal doesn’t equate in law to permission to use.

Scottish Natural Heritage were at the meeting. Their representative confirmed that a fish farm on Shetland had sought their advice, had been told the scientific truth about harm and had simply decided not to use ADDs. We left the meeting without any explanation.

Later we found that on 28 July 2017 Scottish Natural Heritage had given formal advice to Marine Scotland to the effect that “there is sufficient evidence, both empirical and modelled, to show that ADDs can cause disturbance and displacement of cetaceans”, based on the research commissioned by them entitled “Establishing the sensitivity of cetaceans and seals to acoustic deterrent devices in Scotland."

Subsequently I wrote to the Lord Advocate, reciting the above narrative and ending as follows:

“I respectfully suggest that you remind both Marine Scotland and Scottish Natural Heritage of their obligation to observe the law and that they be invited in turn to advise fish farm operators that they must discontinue the use of ADDs unless and until they are granted the appropriate licence.”

The reply came not from him, but from Marine Scotland, as follows:

“Thank you for your letter of 28 November 2019 to the Lord Advocate on behalf of members of the Coastal Communities Network regarding implementation of the EU Habitats Directive in relation to marine European Protected Species (EPS). As your letter concerns Marine Scotland’s work, I have been asked to respond.

I would like to reassure you that the Scottish Government is fully aware of its commitments under the EU Habitats Directive to provide strict protection to cetaceans in Scottish waters. I can further assure you that we continue to work closely with Scottish Natural Heritage (SNH) and other partners in reviewing evidence on the potential for impacts on cetaceans from ADDs, including the information presented in your correspondence.

You will appreciate that this is a complex issue and further work is required. That is why the Scottish Government is currently undertaking a comprehensive programme of work on this matter, including a review of the current regulation and management of ADDs at fish farms and an ongoing research project to gather information on the status and extent of ADDs use across Scottish fish farms. This work will help ensure that where ADDs are used, they are appropriately regulated, whilst minimising environmental impacts.

As the competent authority for aquaculture development, local planning authorities consider predator control measures, including ADDs, as part of the planning process, taking advice from SNH. ADD deployment plans are increasingly being adopted for new developments on the west coast of Scotland as a mitigation tool, and are often a condition on the planning permission. That said, the Scottish Government appreciates the need to consider the current regulatory framework covering ADD use, including the licensing process, which is being undertaken through its review.

The review will report to Scottish Ministers in 2020. The Scottish Government has already written to the aquaculture industry to inform them of the ongoing programme of work, including the regulatory review, and will do so again once the review has finished to inform them of its outcomes.

The research underpinning this review will provide the first comprehensive assessment of where and how ADDs are used at all fish farms across Scotland. This will enable better mapping of devices and inform the development of science-based industry guidance on the use of ADDs to ensure that any future use is in a manner that minimises disturbance to marine wildlife, including cetaceans. In parallel, we continue to work with industry, academic institutes and other countries to investigate the effectiveness of other non-lethal options to enable the industry to address the problem of seal predation.

I hope that you find this information helpful and provides the reassurances that you and other members of the Coastal Communities Network require.”

In Summary: It’s all fine, nothing to see, move on. No attempt was made to address the issue of legality. And why spend time and civil service resources on gathering information on “the status and extent of ADDs use across Scottish fish farms”, when simply reminding them to apply for licences would identify them?

We were left wondering what to do next. We can’t sue the Lord Advocate to make him act, nor can citizens prosecute fish farms privately. Judicial Review would be available if a farm actually got a licence, as that would be a “decision” of a public body that could be challenged in court within the statutory three month time limit. No applications means no decisions, means no judicial reviews!

Then, out of the murk came the American cavalry to the rescue!

Last week members of the Scottish Parliament's Environment Committee, the ECCLR, were surprised by a deputation from Marine Scotland giving evidence about a late amendment to the Animal Welfare Bill … banning seal shooting!

Since 2017 politicians and environmentalists alike have known that the United States has banned the importation of foodstuffs produced by methods involving cruelty to animals. Countries using such practices have been given until 1 January 2021 to amend their practices.

It’s inconceivable that Marine Scotland have only just become aware of this. Far more likely is that either the Scottish Government, or possibly that UK Government on its behalf, has been lobbying in attempts to obtain a derogation to allow practices such as seal shooting to continue. We may have just seen an early example of our politicians not having quite the clout they think they have, under the “Special Relationship”.

Opposition members of ECCLR were less than happy at the lateness and lack of a proper explanation. Mark Ruskell pointed out that the American law is wide enough to include ADDs and further clarity is awaited. He is absolutely right; while the deaths of a hundred or so seals a year is extremely unpleasant it doesn’t impact upon their survival as a species as much as does causing irremediable injury to already endangered cetaceans.