Hugh Fearnley-Whittingstall has recently scored some considerable success with his fish fight campaign. It is a very good campaign and it is true that discarding dead fish is a hateful practice radiating wanton destruction. But then fisheries legally is a very strange place and bycatch is only one of many weird practices which has resulted from attempts by Whitehall and the EU to limit overfishing while at the same time maintaining fishermen's incomes.
Bycatch is the issue-of-the-moment but perhaps, to borrow from Douglas Adams, it is a superficial design flaw beneath which lurk more fundamental design flaws. The issue which troubles me is that behind the scenes there is a potential unregulated one-off and permanent give-away of public fishing rights to the private sector. My concerns centre around the innocuous sounding UK fixed quota allocation mechanism. This is the method by which fishermen are granted the right to catch and sell limited amounts of certain valuable commercial species.
To begin looking at this it is important to get a little context. Traditionally, there was (and still is) a public right to fish in UK waters. This right belongs to the Crown on behalf of the public. In the 1960s legislation was brought in to licence commercial fishing vessels. This was not at all controversial, as everyone who applied for a licence could get one. It was not until the mid 1980s as part of stock control measures that the authorities decided to issue no new licences, but to continue to re-issue them to existing holders.
At almost the same time, in an effort to control fishing of certain species, quota was introduced so that fishermen were limited to the landings they could make on a number of commercial species. Quota was allocated free to fishermen based on their historic landings, usually over a two year period, a concept known as track record. Quota continued to be reallocated annually on the same basis, but over time the fishermen started retiring or selling their business at which point the authorities allowed them to sell their ‘entitlements' to vessel licences and quota to other people. This is where the story gets a little strange. Quota has now found itself in the hands of ‘slipper skippers' who don't go to sea, but rent quota out to those that do.
The Ministry probably didn't realise what it was doing, but this series of developments effectively resulted in a potential give-away of public fishing rights. It is not quite a fait accompli.
Generally, a state sell-off would need a new Act of Parliament; this is particularly true of fisheries as according to the case of Malcolmson v O'Dea the right is preserved for the public in the Magna Carta.
Government departments don't normally dish out valuable public rights to individuals without going through due process: this usually involves statutory checks and balances of either ensuring a full market value or some other easily discernible public benefit. To remain, at least within hailing distance of their powers, the authorities have tended to rely on wording in vessel licences and guidance notes instructing that these are only temporary and at the discretion of the Minister, but they are ‘temporary' arrangements that have gone on for over twenty years.
A problem for future generations
The system is yet another example of the elder generation grabbing what they can and leaving the younger generation to pay for it. The generation of fishermen retiring now, were given their quota while they are expecting the next generation coming into the industry to pay for it. Intergeneration inequity is not just a moral question but it also raises problems under human rights law. Iceland used a similar system to ours and the United Nations Human Rights Committee in Haraldsson & Sveinson v Iceland found that its quota allocation system was held to illegally discriminate against fishermen who missed out on the initial of quota because they did not have sufficient track record. The UK may well be breaching the same law.
The UK's current arrangements are in the equivalent of legal outer space. Do ‘quota holders' have a right to the continuation of the practice or not. There are complex legal arguments behind this, but ultimately quota almost certainly for the moment remains at the discretion of the authorities, but the longer the practice continues the harder it will be to reallocate quota to fishermen employing more sustainable practices.
From an outsider's perspective what emerges is a pattern where consistently the UK authorities have sought to preserve the status quo despite their legal and moral obligations. The result is, to put it mildly, a mess. We need to step back a little from where are now, recognise the fishery as a public resource and treat it like that. Politically, this may be uncomfortable for many of those within Whitehall and within the industry, but there is no need to give away the nations fishing rights. It looks like there may be another fish fight over the horizon.
Thomas Appleby is a Senior Lecturer in Law at the University of the West of England and currently researching the sustainable allocation of the UK's fisheries quota. A full version of his most recent paper is available online
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