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”.

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.

Suddenly it all seems relevant!

I was very lucky to study Jurisprudence for three years under Professor Sandy Anton, an international lawyer of terrifying intelligence, then to be sent off to study at the Hague Academy of International Law, as a result of which I am entitled, under that law, to describe myself as an “Attender” but not an “Alumnus”, having decided not to take the exam. Thereafter I was appointed to teach the subject, getting the vacancy left when John Smith went into politics. For the next thirteen years my working life was brightened up with twice weekly tutorial discussions and annual conferences hosted by the Association for Social and Legal Philosophy. I’m no expert, but have retained a lifelong interest and studied events over the decades since. The period runs from the United Kingdom’s entry into what became the EU to the current bùrach.

Those discussions often concerned the conflict between the English doctrine of the Sovereignty of the Westminster Parliament and the consequences of becoming part of an international club. For the benefit of anyone coming to this territory for the first time I will offer a quick trot over the course.

I described the doctrine as English because Scotland never developed such an absolutist theory at any time from first becoming a country to joining the Union. The King was the King of the Scots and ruled with their presumed consent, see, for example, the Declaration of Arbroath. By contrast English legal theory went down an absolutist path, which intensified when empire-building supplanted trade as the engine of economic growth.

In the late Victorian era of gunboat diplomacy this international thuggery, now termed Sovereignty, came to be expressed in legal terms by writers such as Albert V Dicey and that forms the basis for the constitutional position to this day. I nearly wrote “settlement”, but the matter has never been up for negotiation. As currently understood, the doctrine means that no Westminster Parliament can ever bind its successors, so in practical terms anything written in an Act is only valid until Parliament decides to change it. No window dressing, no “vow” by a group of leading cross party politicians can mean anything, it’s all up for grabs. It’s like playing cards with a fellow who has his pistol on the table.

When the Westminster Parliament enacts something, such as “The Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom’s constitutional arrangements” this is legally, in terms of the United Kingdom “constitution” complete rubbish. That responsible people, such as Professor Tomkins, a senior legal academic moonlighting as a politician, were involved in promoting this sort of deception is beneath contempt. It was always clear that the so-called United Kingdom Supreme Court, in reality only a Westminster creation, would rule the way it has done recently.

So, that’s the domestic position, what’s the position in International Law? Forty or so years ago academics were very exercised at the apparent conflict between Westminster Sovereignty and EU law and expected to see disputes and litigations emerging. The issue centred on the fact that while almost all the other member states had written constitutions, often imposed by the Allies, expressly making national law subservient to international law, the UK didn’t. The reason why problems haven’t arisen does not mean that some magic solution was found; it’s simply down to the fact that both sides recognised the manifest benefits, both ways, of UK membership. During the most heated rhetoric of the Thatcher period this always remained the underlying reality.

That reality remains unchanged by Brexit. Even the neo-fascist fools who grabbed power last December no longer pretend that people will be better off. A huge price is to be paid, almost certainly by the poorest in society, for a trip into an English nationalist fantasy world, where people have blue passports that they can’t use and little else.

This week we have seen, certainly for the first time in my adult lifetime, a government minister openly and expressly stating that the United Kingdom intends to violate an international treaty and, to top that, a treaty negotiated, signed and approved by the politicians who are currently in power. The sheer enormity of this would have sent electric shocks through those academics at the conferences I mentioned. As Lord Kerr and Lady Macintosh and others were saying yesterday in the House of Lords, this puts the United Kingdom in the position of a rogue state.

But has the position in terms of International Law changed? Tragically I think not, but I’d be delighted to be proved wrong. Compliance with treaty obligations is still very much a matter of mutual recognition of self interest. There is no international super state police force. If a State breaks the rules others will react at levels rising from expressions of disapproval, through breaking off relations and so on. The damage done this week puts the United Kingdom, jurisprudentially, in the same place as North Korea and the world leader in these matters, the United States. The lesson is that rulers can get away with breaking the rules if either they don’t care about their people or they’re big enough. I hate to think which category the United Kingdom belongs to.

Over the remainder of this year we will see the consequences of the current insanity working through. It’s now virtually certain that there will be a “no-deal”. Specifically regarding Northern Ireland it’s likely that Westminster will not take steps to put in place the customs officials and checks required in order to respect the Withdrawal Agreement. There will then be a challenge to the Republic of Ireland as an EU member state to put up a hard border. That is no doubt the calculation of Johnson and friends, but is it really likely that they would do so? My guess is that they will decide to put up with a lot of smuggling in the short term to avoid a return to the Troubles, while mustering all forms of international pressure and support to bring the United Kingdom to heel. Regardless of who becomes President in November the Irish lobby in the States will be very active in this. And don’t forget that the Irish have the right in terms of the Withdrawal Agreement to a referendum on unity.

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.”

Brexit and Fisheries - Where are we at now?

This coming week, from Tuesday 12th, among the Brexit negotiations there will be a series of video conferences on fishing. By the end of the week there will be just six weeks left before the self-imposed deadline of having fishery matters settled by the end of June.

Until two days ago the United Kingdom had refused to produce a draft of the required legal agreement setting out how it sees a future fisheries agreement working in practice. That means that matters rested on the extremely vague principles set out in a document issued last February and that doesn’t seem to have been changed since.

A triumph of aspiration over detail, that document contained phrases such as:

“The UK is ready to consider an agreement on fisheries that reflects the fact that the UK will be an independent coastal state at the end of 2020.” and

“Overall, the framework agreement on fisheries should provide a clear basis for an on-going relationship with the EU, akin to the EU’s relationship with other coastal states, one that respects the UK’s status as an independent coastal state and the associated rights and obligations that come with this.”

Further, the proposal was

“for annual negotiations on access to the parties’ exclusive economic zones and fishing opportunities (total allowable catch and shares).”

From the start, the position of the EU has been that they are not prepared to deal with issues piecemeal. It has also seemed that, while they denied it, that was precisely the position of the UK team, led by Mr David Frost, the Government’s self described “Sherpa” in charge, incidentally neither a civil servant nor a politician.

Michel Barnier’s Statement of 24 April only confirmed what the EU has been saying from the beginning:

“Finally, we made no progress on fisheries.
On this essential topic, the UK has not put forward a legal text.
We have made no tangible progress despite the Political Declaration stating that we should make our best endeavours to reach an agreement by July. This is necessary to provide sufficient clarity for EU and UK fishermen, and also for all businesses linked to fisheries.
The EU will not agree to any future economic partnership that does not include a balanced, sustainable and long-term solution on fisheries. That should be crystal clear to the UK.”

It seems that last week the UK was, unsurprisingly, the first to blink. In tweets yesterday, David Frost declared

“I would also like to make clear that the EU have from us a full set of draft agreements” including

“A Fisheries Framework Agreement.”

What Mr Frost didn’t make clear was that, astonishingly, although a draft text has been sent to the EU negotiating team they are apparently not permitted to send it out to the EU member States. Also, it seems most unlikely that it has been shared with the Scottish Government or the devolved administrations in Northern Ireland and Wales.

I don’t think any further comment is necessary.

Fishing Quota and Brexit

The Fisheries Bill is now making its way through the UK parliament, having been introduced in the House of Lords.

In the House of Commons the former UK Environment Secretary

Theresa Villiers said:

“This new bill takes back control of our waters, enabling the UK to

create a sustainable, profitable fishing industry for our coastal

communities, while securing the long term health of British fisheries.

Leaving the EU’s failed common fisheries policies is one of the most

important benefits of Brexit. It means we can create a fairer system.”

Former UK Fisheries Minister and now UK Environment Secretary George Eustice said:

“The Fisheries Bill gives us the powers to implement our own independent fisheries policy, improve our marine habitats and make decisions based on the health of our fish stocks not vested interests.

For many people in coastal communities, taking back control and leaving the Common Fisheries Policy is at the heart of getting Brexit done, and this Bill delivers for the environment, fishermen and the Union.”

Strong words, but here is Lord  Gardiner, speaking in the House of Lords, sounding much more cautious:

“It creates the powers that the UK needs to operate as an independent coastal state and fulfil our international obligations. From 2021, the UK will be an independent coastal state, able to control who can fish in our waters. We will be responsible for setting annual total allowable catches of fish species within our waters. For stocks that are shared with other coastal states such as the EU and Norway, we will negotiate to agree fishing quotas. Currently, the EU distributes quotas between its member states using a principle called relative stability, which provides a fixed percentage of quota based on fishing patterns from the 1970s. This gives an unfair share of quota to UK fishers, not reflective of what is found in UK waters, and so we will negotiate to move towards a fairer, more scientific method for the allocation of shared stocks.

…Unilateral restriction on access to fishing in the UK EEZ would almost certainly lead to reciprocal restrictions being placed on UK vessels fishing in the EU EEZ. This would also have a profound effect both on the fishing industry in the EU and on the UK fleet that relies on fishing outside the UK EEZ. Some form of mutual access arrangements must therefore be negotiated.

The historic reluctance of Member States to renegotiate the relative stability key suggests that negotiating new quota allocations after Brexit will be difficult. Such difficulty will be accentuated if these negotiations overlap with the wider negotiations on EU withdrawal. The Government could use access to fishing within the UK EEZ as a lever for achieving a better allocation of quotas but must also bear in mind that co-operation will be crucial for the long-term sustainability of stocks.

As an independent coastal state the UK will in principle be able to ‘walk away’ from negotiations with other coastal states if the compromises reached on TACs or quota shares are not aligned to UK interests. Walking away would, by leading to unilateral management of shared stocks, risk undermining the sustainability of fish stocks. It would also invite retaliation in other areas, including trade. Consequently, walking away should be a last resort.

Trade in fish and seafood is essential to the wider seafood industry, which relies heavily on importing raw goods at reduced or zero tariffs for domestic consumption, and on exporting domestic catches and production. Any disruptions to the current 

trading patterns could have profound effects on both the catching and processing sectors. Trade with the EU in fish products will be a key factor to the future success of the UK fishing industry and fish processors. We therefore urge that the fish sector should be included in the Government’s consideration of priorities for a future trading relationship with the EU.”

The Bill has been welcomed by the representatives of the largest fishing interests, including Barrie Deas, Chief Executive of the National Federation of Fishermen’s Organisations, and Elspeth Macdonald, Head of the Scottish Fishermens Federation. Last week both gave evidence in the House of Lords, along with Jeremy Percy, New Under Ten Fishermens Association and Andrew Kuyk, UK Seafood Industry Alliance. 

Of the four witnesses, Ms Macdonald was the most bullish about Brexit, claiming that “getting back control” and “sovereignty” over UK coastal waters would bring enormous benefits to the UK fleet. This was effectively a continuation of what her predecessor Bertie Armstrong was preaching in the years leading up to the Referendum and led to a split in the SFF.

Mr Percy and Mr Kuyk were much less enthusiastic about the “benefits” of Brexit. They confirmed that in the last forty years fishing patterns have greatly changed, as has the distribution of the target fish themselves. In some parts fishers are unable to catch up to their quota, in others they can catch their years allowance in a couple of weeks. To redress this there are proposals to create new quota and share it in ways that reflect current patterns. Doing this will not be  easy and conflict with countless vested interests.

During the hearing Mr Percy read out a prepared statement from the Scottish Creel Fishers Federation, so they were represented by proxy. The statement confirmed their concerns over certification and transportation of live and highly perishable catch. The Committee acknowledged bluntly that this would be a consequence of Brexit and no comfort of any sort was given.

The rest of this post attempts to answer a simple question. We know that most if not all of the smallest members of the fishing fleet, who are of course also the most important for survival of their local communities, are extremely worried about Brexit, but why are the major operators, based in the big North East ports and owning almost all the quota, not equally concerned? 

There’s a lot of mystery about how the ownership of quota is structured and the ownership of the owners themselves, where they are companies and not individuals.

In her evidence Ms Macdonald claimed that the SFF represents 80% of the Scottish fleet, and holding almost all of Scottish quota, which she said is 80% owned by Scottish owners. This ties in with what we already know about the composition of the ownership of the Scottish share of quota, that it’s almost all under the control of a few major families based in the North East. There should be a caveat here: it’s quite possible that some of the Scottish registered boats are owned by limited companies that have in turn foreign shareholders, or shareholders that are in turn companies owned by other interests. It would be a surprise if this were not so.

Mr Deas confirmed that a good part of the remainder of UK quota is no longer owned by British interests. In particular, French and Dutch investors have bought out quota over the years. Perhaps people shaking their fists at Dutch super-trawlers off the coast should be looking closer to home?

World wide fishing quota is created as part of the attempts to conserve fish stocks and share fishing opportunities by way of  permission given to an operator to catch a specified amount of a specified stock in a specified period. Available scientific data is used to work out “total allowable catch” and the result allocated on the basis of traditional fishing activity. 

In the EU it’s been part of the much derided Common Fisheries Policy.  Not all species are included, in fact most of the Scottish West coast fleet is probably fishing for non quota species, such as shellfish.

The original allocation of quota was based on what was known about the distribution of target species and the fishing patterns of the various fleets active in EU waters. Percentages were worked out and then given, without payment, to the fishing boat operators who were active at that time. 

As both the allocation within each member state’s fleet and the subsequent administration were matters for that state it seems that the rules could have required an operator on giving up fishing to surrender its quota, again without payment, in order that it could be reallocated to a new operator entering the industry. Sadly, during that period the UK was under the control of free market, neo-liberal governments which allowed quota, not just for fishing but for other commodities such as milk, to be sold. I suspect that other states took a different approach, which would have made UK quota particularly susceptible to buy-out. 

This problem isn’t just a UK one. Here’s a quote from a Canadian website:

“As it stands right now, British Columbia’s policies are different from anywhere else in Canada or Alaska in that quotas and licenses can be owned by anyone, including large, non-Canadian corporations. We often call those owners “slipper skippers” or “arm-chair fishermen” because they never set foot on a boat. BC quotas and licenses are bought and sold like hedge funds. On average, 70% of the landed value of the catch goes to these shareholders, leaving precious little income for the hard-working people trying to make a living in their coastal communities.”

I attended the Marine Scotland meeting on fishing policy in Oban last July, at which fishermen owners of quota pointed out very forcibly that there are now no longer people in the industry who got their quota for free and that current owners see it as part of their retirement funding. This means that in turn, as has also been pointed out, anyone entering the industry has to buy a share of quota, which may cost as much as the boat itself, finding in effect that the bottom two rungs have been cut off the ladder. The effect, of course, is to concentrate ownership of quota in wealthy people who quite probably don't themselves go to sea.

So, what do the owners of quota know that the rest of us don’t?

I suggest that they are aware that under the European Convention on Human Rights, which has of course absolutely nothing to do with the European Union, the owner of an item of property cannot have it removed without being given due compensation. By accident or design, successive United Kingdom Governments have allowed quota to become precisely that, property that has legal protection.

If this is correct we are likely to see over the next few months a considerable rowing back from extreme “taking back control” positions, perhaps the creation of some new quota to pacify some interests, business as usual for the major players and disaster for much of our West coast fleet.

Post script: for another take on this problem has already highlighted by Greenpeace, see the link here: Unearthed - the Millionaires hoarding UK fishing Rights