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