Devolution, and independent governance for Scotland, Wales and Northern Ireland, has recently refuelled the debate within the United Kingdom regarding ownership of licences and fishing quota.
Previously, fishing policy in the UK was dealt with centrally with the Department for Environment, Food and Rural Affairs based in London (DEFRA), being the lead fisheries department in connection with negotiations in Europe and the administration of fisheries. DEFRA's lead role was by agreement with the devolved authorities, but recently both Scotland and now Wales have indicated that they wish to control fishing policy separately.
In respect of Scotland in particular, this split has been largely driven by the election of a Scottish nationalist parliament which maintains a strong policy of fishing licences and quotas being a national resource, to be controlled by government for the benefit of the national fleet as a whole.
In the UK the general policy has always been that fishing licences and quotas are a national resource. Licences have always been supposedly issued at the discretion of the Minister, as have quotas. However over the years this has become more and more a theoretical position as the authorities have allowed the development of a market in both licences and quota. In particular, various rounds of fishing vessel decommissioning have been dealt with in such a way that fishermen were encouraged to retain quota for themselves or for selling on.
Furthermore, in an effort to encourage fishermen to obtain quota to legitimise their fishing operations and reduce black fish landings, government has tacitly approved the development of quota and licence trading. Indeed, it is now likely to be the case that holders of licences and, more importantly, quota have acquired what is known as a legitimate expectation to be granted their quota year on year and, as such, have a legal right to it.
Whilst DEFRA seems to accept the situation regarding the market in quota, the authorities in Scotland do not. As a result, Scotland has decided to break away from the rest of the UK and administer its own quotas. Scotland is promoting the concept of quotas and licences being a national resource and regarding the grant of these to vessel owners as the grant of "stewardship rights" for a fixed period of time, with no automatic right of renewal of the grant.
In addition, it is proposed there is a positive policy of removing licences and quotas from the ownership of so-called "slipper skippers" who do not actively participate in the industry, but hold quota with a view to renting this out. In addition, the Scottish consultation provides for the specific identification of Scottish licences and quotas and provides for strict rules on the holding of such licences and quotas by non-Scottish nationals. It is therefore somewhat ironic that after the UK government were taken to task in the FACTORTAME case regarding the nationalistic protection of quotas, similar steps are being taken by Scotland against the rest of the United Kingdom. Non-Scottish interests holding Scottish licences and quotas will now face the requirement of complying with an appropriate economic link to Scotland.
The legal difficulty with the Scottish proposals still remains that this will be a total change in policy from what has gone before, and there will be many in Scotland who will be adversely affected by it, given their acquisition of rights to licences and quotas over the years as a result of United Kingdom government policy, and which has led to them very likely having a legitimate expectation. It is therefore anticipated that if the proposals which are in the Scottish consultation document are adopted as policy in Scotland there will be numerous legal challenges. Put simply, the Scottish policy is a case of shutting the stable door after the horse has bolted, and in many people's views it will simply be too difficult and complicated to try and unravel the market led system that has existed for many years, and put quotas and licences back in the hands of the state as a national resource. The question of private rights to fishing and Individual Transferable Quotas (ITQs) is something which is on the European agenda, and the sooner those issues can be resolved at a European level the better it will be for all.
Beyond quotas, devolution has also caused extreme difficulties to the industry in many ways, not least the complicated range of legislation that is now in place applying different rules in different parts of the United Kingdom. Fishermen are now faced with distinguishing between English fishing vessels, Welsh fishing vessels and Scottish fishing vessels, not forgetting English waters, Scottish waters and Welsh waters. This has led to the absurd situation that, for example, in the case of scallops, scallops which are legitimately caught and which are above the minimum landing size in English waters cannot be transported through Welsh waters or landed in Wales because the self-same scallops which are legal in England are illegal in Wales. In a recent case this has resulted in the situation that English vessels catching scallops legitimately in English waters are being forced to divert their landings away from the nearest ports, which are in Wales, to more distant English ports for fear of being prosecuted for the illegal transportation of scallops in Welsh waters. Given the current high fuel prices and the drive for all of us to reduce our carbon footprint, such confusing legislation seems a nonsense.
The one thing that does seem to be certain from the ongoing process of devolution in the United Kingdom is that the legal regime under which fishermen and the fishing industry exists will only become ever more complicated and divisive.
