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.
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.
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