Who owns the Kirkella?

I had not intended not to write further on the vexed subject of fish quota, mainly because I felt that the subject had been talked to death and that rather than engaging in arguments with hard line Brexiters it would be better just to wait for the alleged “benefits” to start kicking in. Quota isn’t mainly a West coast issue, but my interest had been fired up some years ago, following a conversation with a fellow who had been on one of the supertrawlers and told me, to my astonishment, that the ship had caught her entire year's share of quota in just three lucky weeks. He assured me that the ship spent the rest of the year out of action, something I found hard to believe. Surely, with an investment of millions, you would simply sail off to another corner of the World?

The piece that appeared on the BBC website the other day changed my mind, so here goes with my last contribution of 2021. The story starts:

“The owners of the UK's biggest trawler have described a new government deal to win back fishing rights following Brexit as "too little, too late".

Hull-based Kirkella has been mothballed since December 2020 after the UK lost the right to fish in Norwegian waters.

UK Fisheries said they were "absolutely devastated for the crew" as the new quotas offered just one week's work.

The government said the deal, announced earlier, struck a "strong balance" for the UK and Norwegian fleets.

The fishing access will see fleets from both countries be able to fish up to 30,000 tonnes of cod, haddock and hake in respective waters in the North Sea, the government stated.

Kirkella has been moored for a year at Hull Docks with the crew unable to work while post-Brexit negotiations have been ongoing.”

Comment: Those with reasonable memories will remember Liz Truss a year or so ago expressing her great joy that she had concluded a deal with Norway. I spent some time looking unsuccessfully online for the text, rather than mere puff. I then contacted Mike Russell, who informed me that the Scottish Government had not been involved and did not have a copy. The BBC piece confirms that one important point had not been agreed, the actual quantities that UK vessels would be allowed to catch in Norway’s (nonEU) waters! Before Brexit, of course, the UK was covered by what the EU, with the massive muscle of a giant trading bloc, had negotiated with Norway on our behalf.

The piece continues:

“The self-employed, 30-strong crew of the 81m (266ft) freezer trawler were paid per trip and have been ‘sold down the road’, according to first mate Charlie Waddy.

‘I feel for the men,’ he said. ‘Their lives have been fishing since they left school. All they wanted to do was come fishing. They loved the job.’

Mr Waddy said he felt the government had encouraged fishermen to back Brexit, but he was now worried for the future of the industry.”

Comment: That the crew are/were all self employed is utterly scandalous in the modern world. This means that they presumably have no entitlement whatever to any of the normal employee protections that our law, to date in line with the EU, provides, things like sick pay, redundancy and pensions. It’s a traditional model that worked fine in small fishing communities, but should have no place whatever in an industry that is otherwise very modern and industrialised.

The article then finishes:

“Jane Sandell from UK Fisheries, which claimed Kirkella supplied between 8-12% of all fish sold in UK fish and chip shops, said the latest deal had left the company ‘more than disappointed’.

She believed the new fishing deal offered just one week's work for the Hull-based crew.

‘We're absolutely devastated for the crew. The government was fully aware of what we need to operate a viable business and frankly these kind words were just platitudes.’

The government said the deal would see UK fishing vessels be allowed to fish more than 7,000 tonnes of cod in the arctic - an increase of 1,500 tonnes compared with 2021.

Fisheries Minister Victoria Prentis said the arrangements ensured a strong balance, that would benefit the fishing industry and ‘the protection of the marine environment’.”

I have in the past researched the ownership structures of some of the principal vessels involved in what is described as the UK fishing fleet. Frequently the results show only the most marginal connection. The Kirkella seems to be no exception, despite the message painted on her bow

The Kirkella is the property of her own dedicated limited company, Kirkella Limited, registered in England and Wales and based at the Orangery in West Yorkshire. The company is financed by a Dutch bank. The directors of the company are:

Diederik Parveliet (“ Mr P”), a Dutchman.

Jane Sandell (“Ms S”) an Englishwoman.

Balvin Thorsteinsson (“Mr T”) an Icelander.

Jan Cornelis Van Der Plas )”Mr VdP”) a Dutchman.

But who owns Kirkella Limited?

The sole shareholder is J Marr Fishing Limited, another English company. Its directors are Mr P, Ms S, Mr T and Mr VdP.

And who owns J Marr Fishing Limited?

The sole shareholder is UK Fisheries Limited, another English company. Its directors are, surprise, surprise, Mr P, Ms S, Mr T and Mr VdP.

So, who owns UK Fisheries Limited?

The shareholders are Onward Fishing Company Limited, 50% and

B V Tory, 50%

You can search until the fish come home, or Brexit delivers a bonus, before you will find anything more about B V Tory, although one suspects it may be a Dutch registered entity, because from now on Mr VdP drops out of the story.

Re Onward Fishing Company Limited, the directors are Mr T plus a new Icelander, Gustav Baldvinsson.

This company belongs entirely to Samherji HF, which looks suspiciously like an Icelandic registered entity. Again, finding which actual people are the ultimate beneficiaries is impossible.

To conclude on a not very happy note, Liz Truss and Victoria Prentis have been fighting the corner on behalf of a gigantic supertrawler that ultimately belongs to what appear to be Dutch and Icelandic entities, fishes UK quota and uses the services of a crew who, if they are British residents, are presumably currently being looked after by UK taxpayers while their services are not required.

Images from the BBC website.

The Brexit Challenge Webinar

On Wednesday evening I watched a webinar hosted by Trinity College Dublin entitled “The Brexit Challenge for Ireland and the United Kingdom”, which proved to be utterly fascinating and highly informative. I hope that a recording will be posted online in due course, but in the meantime here are some brief notes on the main points discussed.

There was no main speaker from Scotland, but the event celebrated a recent book on Brexit with the same title and Professor Aileen McHarg, one of the editors, made a short contribution after the main talks.

The first speaker was Paul Gallagher QC, the Attorney General for Ireland, and thus the principal legal adviser to the Republic. His main points were that Brexit has what he described as of “sub-constitutional” significance, by which I think he meant the departure of the UK did not in itself breach the terms of the Irish Constitution and the Article 50 procedure was something already legislated for in the EU treaties. Despite that of course Brexit has enormous unwanted legal effects, almost none of which was envisaged on the British side, let alone provided for. This has placed the Republic under gigantic strain.

He was followed by Dame Brenda King QC, the Attorney General for Northern Ireland, who was constrained in what she could say because of the total political and sectarian split, so her address was somewhat formal and one had to read between the lines. This was made up for later by Professor Christopher McCrudden QC, who made a comment, see below.

The event became very interesting with the next speaker, Mick Antoniw, the Attorney General for Wales, who delivered a prerecorded talk. He did not share Dame Brenda’s reticence at all and spoke about the absolute disgust felt in Wales at the total absence of consultation by the UK negotiators with any of the devolved administrations, the use of Brexit as a device to remove powers from the Welsh Assembly and the fact that Wales has been deprived of most of the funding that previously came from the EU. He also explained how the Welsh have been working tirelessly to develop good working relations with the Republic in the hope of minimising the disaster that is unfolding.

Given that he, like the other two A-Gs, is technically an impartial adviser and that Wales, unlike Scotland and NI, voted to leave, one has to assume that for him to take such a political line would have been done with the approval of the Welsh administration. At times he sounded inches away from declaring full support for Welsh independence. I was left feeling sad that we don’t have an equivalent major legal government figure in Scotland doing the same.

Sir Jonathan Jones QC came next. He had been the Head of the UK Government Legal Services through the Cameron and May years and had resigned at the end of 2020, presumably because he could no longer stomach the disregard of the Johnson regime for both UK constitutional law and International law.

He said that while he could not reveal confidential information he was in fact pretty free to express his views as matters were all in the public domain anyway.

He started by reminding us that the document that the Cameron government sent to every house in the UK failed to mention the consequences for Ireland if the UK left the EU. He went on to say, if I heard correctly, that they had not commissioned any work on the legal consequences of a leave vote. That is so significant, that I would like to check from a transcript or recording; it simply beggars belief. What was 100% clear was his conviction that nobody in Downing Street in 2015/16 had a clue about those effects.

He then stressed that having torn up the May deal and cobbled up their own version, Johnson and Frost denied the UK Parliament of the chance of any meaningful discussion by insisting on forcing the whole thing through in one evening after barely allowing anyone who wanted to have time physically to read, let alone analyse it. My comment - such is the new reality of “taking back control” and “parliamentary sovereignty”.

He also made the point that, while the May administration had been hobbled by being dependent on the DUP, Johnson with his huge majority had no such limitation. While he did not say so in terms, it seems very likely that the extreme form of Brexit inflicted on these islands did not involve anything resembling a proper analysis of legal issues, economic consequences or costs and most important of all the social and political implications.

During questions Professor McCrudden didn't hold back. He emphasised the extremely subtle and nuanced nature of the Good Friday Agreement, that fact that it had worked well, in fact perhaps better than might have been predicted and that it now remains to be seen how much damage has been done. In particular the current escalation of sectarian violence suggests that Stormont may not remain possible for much longer. The reintroduction of direct rule would be a nightmare and a disaster socially and economically, absolutely the opposite of what the population wanted when they voted strongly to remain.

Professor McHarg made very brief reference to the consequences for Scottish independence in all this, but was rather guarded.

There was brief reference to whether or not triggering Article 16 could be done by Johnson and Frost as an executive act not requiring parliamentary approval, with the view that it could. Again not exactly “taking back control”.

To summarise all this, the blunt fact is that having rejected the May deal, which was messy but could have worked, Johnson has opted for a situation that is unsustainable and that should have been foreseen as such. My ghastly suspicion is that he, or more likely Frost, has woken up to that and that stimulating fights everywhere, with the EU and internally in NI, is an exercise in deflection that will have utterly dreadful consequences for all of us, presumably in the hope we’ll all think that “a bad boy done it and ran away”.

Battle is Joined!

Last week we learned, via a press release from MOWI, the largest industrial fish farmer in Scotland, that it has started court action against the well known environmental campaigner Don Staniford, aimed at putting an exclusion zone of fifteen metres around all of their fish farms on our West coast. If they are successful in persuading a court to do this there’s no doubt that other companies will follow suit and that anyone who sails or paddles near a fish farm is likely to be threatened with a writ.

As matters are in court I’ll not be commenting further at this stage, apart from to say that it seems unwise for the Scottish boss of MOWI, Ben Hadfield, to declare:

“This person’s behaviours and actions that we have borne witness to over the past two years gives cause for great concern, and is not something that our staff should have to endure whilst going about their daily work. Everyone should be able to go to work and expect their workplace to be free of harassment and intimidation.”

Without clear evidence to back it up this statement would appear on the face of it to be highly defamatory. From what I’ve seen of the images posted online by Don Staniford he, understandably, seems to work at times when workers are not present. The covert gathering of evidence of abuse is light years away from the openly and deliberately disruptive activities that are features of mass protest. Indeed when workboats and employees have turned up it’s not been obvious that they have been the victims.

MOWI in action at Loch Alsh

The Election and the Environment

 

Anyone with an interest in the environment, but who also wants to free Scotland from London rule that we haven’t voted for for over half a century has until now been in something of a conflict. If you supported the SNP in an attempt to achieve the former you were at the same time supporting a government that has committed itself to the massive expansion of industrial aquaculture in our inshore waters, despite the advice from two Parliamentary committees that doing so carries gigantic risks to the marine environment.

Time and again in Scotland we’ve seen wonderful, miracle solutions to our problems forced on us by, no doubt well-meaning, politicians with pretty disastrous results. It goes back well before modern politics too. The very Clearances resulted from external and internal landowners bringing in new ways of doing things, replacing the black cattle with sheep, with dreadful longer term economic consequences and a cultural catastrophe.

Industries have come and gone. Ulva was once sustained by kelp, until ships brought in cheaper Chilean guano. Aluminum came to Fort William. Some are still here, just. Oil in Aberdeen, how much longer? Miracle solutions arrive, outsiders get rich, take the money and go.

In my childhood the Firth of Clyde supported lots of thriving sea angling businesses, catering for thousands of industrial workers at weekends, supporting trades, local cafes and restaurants. Then the neo-liberals lifted the Three Mile Limit, an emergency Victorian measure that has been proved, with hindsight, to have been well grounded in science.

With foreign holidays soon to be distant memories, what can we do to restore our coastal towns and landscapes to attract visitors and their cash? Building gigantic industrial silos, such as we see when coming off the Skye Bridge, may not be the best idea.

From early this Century we in mid Argyll have seen a merciless expansion of industrial aquaculture, forced forward by an industry that is almost entirely owned and is certainly entirely controlled by entrepreneurs from outside Scotland. Investors include oligarchs from former Soviet countries and folk like the extraordinary Jon Fredricksen. Supposedly “local” companies trade on their “family owned” image to get permissions, but truly work very closely with the big fellows, a bit like industrial lumpsuckers. Over the last twenty years we have seen sealice bred in the cages reduce the wild fish populations to such an extent that wild Scottish salmon are endangered.

I have campaigned against all this for about ten years now. The trigger was the utterly deranged attempt to expand salmon farming at Ardmaddy, something a very senior fellow at Marine Scotland (now MOWI) told me they would never consider (but that was before his Norwegian chiefs bought the units there). Then Marine Harvest found 83,000 dead fish on their site and many of us woke up to the true horror, hundreds of tonnes of fish wasted and going to landfill (or worse?). But that was just the beginning; our roads are now busy with tankers of dead fish going into a new biofuel industry. What a breathtakingly stupid way to generate power!

Tragically, the SNP has supported all this. I have occasionally spoken to individual MSPs, who expressed concerns, but there is no doubt that the party in government has pushed the industry forward, perhaps even more than the saner company executives would have wished. Marine Scotland scientists have been bullied by Ministers into retiring, older scientists have told me about fears for their pensions, evidence being suppressed, the big money East coast salmon rivers protected. The Tories couldn’t have done a better job and we would all have been screaming!

So, with just under five days until make your mind up time, what are the options?

Going on the latest figures today (Panelbase, Sunday Times), the SNP are set to get 48% in the constituencies, resulting in all existing seats being held plus probably two more. With less than a week to go that seems a pretty definite prediction. If you support Independence that’s a no-brainer for your constituency vote.

The List Vote gives us all choices. The result is, I suggest, totally unpredictable, for several related reasons.

First, the emergence of the Alba Party has forced a lot of us, myself included, to look at the arithmetic behind the D’Hondt voting system that Scotland was lumbered with, thanks to Tony Blair and Donald Dewar. The main reason for their choice was the desire to ensure that Labour would always control Scotland, but it’s been suggested that they also wanted a system so opaque and unpopular that nobody would want to introduce anything similar in England.

The result has been that in Scotland we’ve got four different ways of counting votes, for the UK, Scottish (two systems), local (and until recently a fifth for the EU). I’m sure that I’ve not been alone in having to remind myself each time of the niceties; for example how many of us don’t realise that with Single Transferable Voting you MUST vote for all your preferred choices to exclude those you absolutely don’t want (the system used and then abused in the recent SNP list selection, by the way).

To summarise for the forthcoming election, the first constituency vote is simply counted on “First Past the Post” and list votes are then discounted depending on how well your party has done.

In Highlands and Islands let’s assume that the SNP hold their existing six constituencies. They did this last time with a vote share of only 41.46%, against today’s national poll of 48%. D’Hondt then provides that their list vote will be divided by seven (seats won plus one). In 2016 this meant that 81,600 list votes counted for 11,657 and got the strong, competent Maree Todd elected on the sixth round of counting. This time the SNP are fielding someone who was patently not the first choice of members, rocketed to the top because of her diagnosis of Borderline Personality Disorder (google it!). If only a few people are troubled by this and decide to stay at home, all the SNP list votes will be wasted.

In 2016 the Libdems won two seats, Shetland and Orkney, for a total of only 14,536 votes and D’Hondt ensured that all their 27,223 list votes were wasted. This time the SNP have two very strong candidates in Tom Wills and Robert Leslie, but friends who know those places are sure that the old Liberal tradition will prevail once more. Will those 27,000+ voters educate themselves on D’Hondt and look elsewhere?

Labour also got two seats in 2016, both list ones, and will probably do so again. They are hugely supportive of aquaculture and of course the Union, so they’re not getting my vote.

If you both favour Independence and want to save the environment, what are the options?

Alba presents voters for the first time with a serious, independence-focused list party, fronted by a number of well-known personalities. The same Panelbase poll puts them on 4%, an apparent drop from a couple of weeks earlier, which still suggests that they will win two seats. I suspect that they will do much better. The almost total media blackout on the party should concern all of us, whether or not we buy into the various narratives that are being spread about. Beneath the pollster’s radar, massive on the ground canvassing is going on for Alba, much of it by former SNP activists who know their territories. I saw a lot of this at close quarters in Glasgow in 2014, when hundreds of people unaffiliated to any parties were chapping doors on housing estates and getting people out. There is a very strong contingent of former Women for Independence supporters now supporting Alba.

But, what do Alba say in their manifesto about the environment? Almost nothing.

The Greens have Ariane Burgess at the top of their list. In 2016 they got one seat, for John Finnie, with quite a healthy 14,781 votes, which of course wasn’t discounted. She’s a strong, well balanced person, with business experience and a good environmental track record, unlike some of her comrades who come from rather urban backgrounds and seem distracted by other issues. I’m uncomfortable personally with some features of her party, but it looks as if her vote will hold up without mine.

Finally, we’ve got Andy Wightman, probably Scotland’s foremost land issue campaigner and a man of great knowledge of legal history and land ownership. Google him and buy his book “The Poor had no Lawyers”. Someone commented on social media that he would scare the daylights out of the landowners. He also happens to have actual, on the ground, experience of working in forestry, lives locally and has political experience. And he will vote for Independence. I’m giving him a chance.

Like

Comment

Share

0

Dunstaffnage - Time to Object!

 There's only a few days left to object. here's my effort:

I am writing to object to application number 20/02358/MFF to permit an increase in the overall size of the fish farm at Dunstaffnage. I am a local resident.

Environmental factors.

It has long been recognised that aquaculture should not be carried on in inshore areas, where there is limited tidal flushing and where there are already other sources of pollution from agricultural, domestic and industrial waste. Added to this is the risk of damage to our already fragile populations of wild salmon and sea trout. In this regard I can add little to what Fisheries Management Scotland have said in their extensive submission to you.

In late 2019 there was a catastrophe on the fish farms in mid Argyll. There were simultaneous outbreaks of a highly infectious viral disease, salmon cardiomyopathy, which had been imported to Scotland from Norway some years earlier. Infected fish show virtually no signs of ill health until almost on the point of death, which results from heart failure. As a result the operators were taken by surprise and some farms suffered losses of up to 40% of their stock, invariably of mature fish well on the way to market size. In order to mitigate their losses the operators of most of the farms North from Loch Craignish took the decision to cull the surviving fish early. Below is a table showing comparative mortalities on the current site, with previous data for comparison.

As wild salmon and sea trout are genetically virtually identical to caged salmon we must assume that local populations were similarly devastated. Of course as the wild fish weakened they would have been eaten, leaving no evidence.

In normal times this event would have led to some form of inquiry, but matters were overtaken by lockdown, compounded by the serious damage done by hackers to the SEPA database, which have combined to hamper the operations of our major environmental guardian. It must serve as a stark warning of the dangers of allowing unnaturally large populations of caged fish in the line of the migration routes of wild ones.

The current proposal is part of the rash that has followed the inexplicable failure of the Scottish Parliament to impose a moratorium on fish farm expansion, despite two committees confirming, after the most detailed consideration ever to have taken place, that the existing regulatory system is woefully inadequate. With SEPA disabled, site visits not allowed and everyone working from home, it’s down to our already overworked planners to protect the environment on which everything else depends.

Economic factors

The essential components in the proposal are for the area occupied to increase from 22 to 37 hectares, for the number of cages to increase from 9 to 14 of larger size and perhaps most significant for the automatic feed barge to be changed from a circular unit holding 80 tonnes to a rectangular one holding 300 tonnes. This is a major additional intrusion in an area where, I suggest, there should not be a fish farm in the first place.

As I write this I am reminded that it’s exactly ten years since I became involved in the campaign against the expansion of the fish farm at Armaddy in Seil Sound, in connection with which saveseilsound was formed. I was secretary of the group until it was disbanded following the removal of the fish farm. As we all know, tidal and wave conditions locally at Ardmaddy proved the unsuitability of the site, exactly as the objectors had said they would.

That application attracted over 800 objections, including from a significant proportion of the residents in the area most affected. At the hearing we did our best to present our case, then watched in despair as councillors, none of them from the area, voted unanimously to grant the application. It was notable that Councillor Currie was enthusiastically in favour, despite his home island of Islay having voted in a referendum resoundingly against allowing fish farms there.

This is relevant, because Argyll & Bute does not have a uniform economy, rather our vast area contains a mixture of micro-economies, some more fragile than others. The population of Islay were concerned that fish farms would wreck the livelihood of the local shellfishers, because the poisons used to kill sea lice kill all crustaceans. They were also aware that tourism and leisure were the major components of the private sector, exactly the same factors that prevail in Oban.

From the early Victorian period, when the railways and the steamers first arrived and the major hotels were built, our visitors have wanted to be taken out to see wildlife, to walk along the shores, “Siubhal air na cladaichean 's a' coiseachd air a' ghainmhich” in the words of the song, which contains a clue as to the name of the only beach in the area. Open sea swimming is currently on the increase, with Ganavan the only point of access locally. Currently there is no information available about the adverse effects of the poisons mentioned in the application on human beings. The noise from the diesel generators on the feeding barge, running twenty four hours a day to drive the feeding systems and the underwater lighting that is used at night to deceive the salmon into round the clock feeding, will be highly intrusive.

The fact that the feeding systems are automatic gives a clue as to the direction of employment on fish farms locally. No longer do workers sit in little boxes aboard the barges watching monitors and pouring bags of feed into cages. When lobbying an already supportive government the industry claims the credit for many times the numbers actually directly employed, but even that direct employment is not spread evenly. Manufacture of cages and equipment is carried on elsewhere, as are the major transport businesses and most of the processing and packaging. I suggest that very few jobs will come to the immediate area, against the possibility of job losses in other sectors.

As we enter the second year of the pandemic it is increasingly obvious that there will be a decline in foreign holidays and a corresponding increase in visitors, plus local residents deciding to holiday at home. We should not forget that having an attractive, clean environment is a huge benefit for residents as well as visitors.

We have recently seen Highlands Council responding favourably to these arguments in refusing two applications in their area. I sincerely hope that Argyll & Bute finds the courage to follow suit.

Brexit - Where are we now?

 

I’ve haven’t written anything on the longer term implications of Brexit for the fishing industry for some time. There are two reasons for this.

First, in the last six weeks we have seen a great deal of upset, escalating in scale from confusion over paperwork to major delays and disruptions to delivery networks resulting sometimes in the wholesale destruction of valuable product. Fish purchasing companies have in some cases responded by freezing stock, to save it at great cost in terms of marketability; fleets have remained in port. The UK ministers responsible initially blamed Covid 19 and/or “teething problems”, announced a miserable £23 million emergency package, if you could prove you had lost other than due to your own “fault” and finally admitted that many of the problems are here to stay. Yesterday we were told that matters are to be raised with the EU Commission to see if solutions can be found.

Second, I was simply getting a bit tired of being abused on social media by people who would better have spent their time facing up to some problems that should have been apparent for ages and are absolutely intrinsic to the Brexit project. Among other things I was being accused of “praying” for the destruction of the fishing industry. For the avoidance of any possible doubt, as lawyers sometimes say, I regard Schadenfreude as an emotion best kept to the field of personal relations; I am absolutely, truly, horrified and disgusted at what I see as an impending disaster among our coastal communities affecting, among others, friends and neighbours for whom I have great respect. While I have never worked afloat I have enough experience of the sea to be aware of the risks our fishers daily run to keep us fed and would never denigrate them.

I claim no special expertise to write about these matters, only that, as a result of a lifetime working in general legal practice I came across EU regulations on a daily basis, as they covered a huge range of issues in our ordinary lives. In almost all cases they were calculated to safeguard us and to raise standards so that, for example, anyone from one EU country working in another would have the same protection against maltreatment, adverse pay and conditions and risk of injury.

As an example, I learned about this very starkly when a client of mine suffered life changing injuries when the machine he was driving on a building site went out of control and overturned. By the time he was discharged from hospital the machine had been scrapped by the plant hire company who owned it and it was impossible to discover what had gone wrong in sufficient detail to ground a case. We raised an action against his employers based on the old, pre EU obligation on them to provide a safe place of work, lost the case before a single judge, but eventually won an appeal two years later. By that time an EU safe working directive had come into force across the whole of Europe, which would have given him an automatic right to compensation without the horror of spending years in court. Such a protection would of course apply to a deckhand on a fishing boat and is now under threat, if a neoliberal government down South gets its way. For half a century the EU has led the way in raising standards, which we have taken for granted.

Back to fish exporting, the plain, blunt fact is that the problems that have now emerged and are clear to everyone, from vessel owner, fish purchaser, processor, skipper and deckhand are only the inevitable consequences of the third country status that the UK now “enjoys”. If a company sends a fresh, live product for consumption into the EU trading block from outside there are rules regarding place of origin, production method and safety to eat, all of which must be proven by documentation. These rules weren’t enacted after 1 January 2021; specifically in the case of molluscs they were put in place at least twenty years ago and were actively promoted by the UK Government, as in charge of the country from which almost all of the particular product was being sourced. Of course, people who claimed that the EU was protectionist perhaps had something of a point; trading blocks are great if you’re in one, rather nasty if you aren’t.

None of this should have come as a surprise. It’s rather disgusting to see Jimmy Buchan suggesting that anyone aggrieved should be taking it up with the Scottish Government; they were excluded from the negotiations by Lord Frost and his team. The EU Commission has published a helpful explainer that can be accessed here:

EU Guidance

I respectfully suggest that it’s rather easier to follow than anything I’ve seen on the UK Government websites.

It’s perfectly plain that if you want to send bivalve molluscs into the EU, whether you’re in the UK or, for example, China, you’re going to have to get permission, based on showing that you have adequate purification facilities at home. Up until now those facilities could be located nearer to the point of consumption and it was all fine; that’s what a “single market” means!

So, it seems that exporters are now faced with either installing facilities and applying for permissions once they have done so, or seeking other markets. There is a risk that while they are doing this people in other countries will see a gap in the market and step in. This seems to be happening already; on 30 October 2020 eight shellfish companies based, mainly, in Massachusetts applied for permissions, which were granted to them last month.

Scottish Government fish quota consultation response

I am not qualified to offer a meaningful response to the specific questions asked, but would like to offer some general comments. When I started out in legal practice in 1970 the concept of quota, be it for fish, milk or any other commodity, was unheard of, and as time went on we had to get used to it as a newly created right of property, in various areas of practice, such as insolvency work. Since the Brexit referendum I have spent time researching the implications of this specifically with regard to fish quota. I hope these comments will be of assistance in the longer term, perhaps after Scotland has got complete freedom to form her own policy in these matters.

I think it would come as a considerable surprise to most lay people that allocations that were originally given out free came to acquire status as items of property capable of being bought and sold and, as such, entitled to protection under the European Convention on Human Rights. People would, I think, also be disturbed to find that this result does not arise from anything intrinsic in the original allocations, nor from anything that the EU has imposed on the UK, but purely and simply from decisions taken by successive UK governments in pursuance of neo-liberal agendas allowing quota sales. We have now arrived at a position where virtually nobody currently fishing got their quota for nothing; everyone has had to buy it and fishermen treat it as a major component in their retirement funds. Other odd aspects are the fact that it often costs more to buy quota than to buy the boat needed to exploit it, and the presence on the scene of what Canadians call “slipper skippers”, who never go to sea.
For authority on quota as a right of property, a “possession”, see the remarks of Mr Justice Cranston in the case of UK Fish Producers Association v Secretary of State for Environment Food and Rural Affairs, at paras 109 et seq in the English High Court in 2013, Law Report
It’s important to recognise that matters did not need to be thus. Not all European States permitted quota sales, for example the Republic of Ireland didn’t. See the following, from their Government:
“Fishing quotas are managed as a public resource which, according to Irish policy documents, means that quotas cannot be bought, sold or leased in any form. It is the minister’s prerogative to manage fishing quotas and they cannot be considered a property right. In order to manage quota utilisation in a non-tradable system, interventions take place to adjust quota allocations. In the case of whitefish, QMAC holds monthly meetings and can make allocation changes to maximise utilisation. This is more difficult for pelagic quotas, which are often set over longer time-periods. As quota management responsibility lies with the minister on the advice of QMAC, there is little direct, devolved role of POs or individual fishers in handling quotas.”
As the UK Government learned to its cost in the well known case of Factortame, once you permit the sale of quota you can’t control the nationality of the purchaser. As a result we know that 80% of English quota and a smaller, but unknown percentage of Scottish quota is now foreign owned. Apart from this, of course, the ships themselves may be British flagged, but they can be, and are, owned through limited companies which often have complex shareholdings including owners registered in various tax havens.
To summarise the above, that any attempt to do anything other than tinkering with existing rights of property will be met with very substantial claims for compensation under the ECHR. Nothing that I have seen in anything published about the agreements concluded so far, with Norway and the EU, suggests anything else.
The choice going forward, with the prospect of additional quota becoming available, is between allowing the new quota to be sold, or to render it unmarketable. To do the latter would not resolve the existing problems, but would at least stop compounding them. It would also preserve some freedom of manoeuvre for future governments in an independent Scotland.
Ewan G Kennedy
Kilmelford, Argyll, 14 January 2021

Great news for the Environment!

Great news today! The Scottish Creel Fishermens Federation have won their case against Marine Scotland over the latter's refusal to run a proper scientific survey into the damaging effects of bottom dredging. In her judgment, published on Friday, Lady Poole has ruled that Marine Scotland failed to follow their own published guidelines when running the consultation that would have resulted in a controlled experiment over a designated area of seabed.

As so often in the past, Marine Scotland have failed in their basic duty to behave impartially in looking after the health of the environment. Essentially they decided to go along with the weight of responses received, many from outwith the area concerned, rather than to have regard to the content and the purpose of the proposal. Once again they have listened to the loudest voices, in this case the fleet of large, highly expensive ships that treat the seabed as their own property, rather than the quieter ones of creelers.

Many, myself included, predicted that Marine Scotland had gone seriously wrong in their handling of the consultation. I've already published the letter I sent to Fergus Ewing on 15 August and it gives me no joy that Marine Scotland persisted in defending a case that was obviously flawed, resulting in a delay that will amount to about a year by the time the various procedural matters have been finalised, enough time for an enormous amount of damage to be done to the seabed. Not to speak, of course, of the expense of both sides that the Scottish Government will now need to pay.

For a link to the full judgment, see here:

Lady Poole's Opinion