Tuesday, 23 July 2013

No one can own the fish in the sea: part two

In my last blog post, I laid out the background to this month's historic quota battle in the UK High Court. This week, I'm going to talk about the ruling in detail: the particulars of UKAFPO's case, and how the judge, Mr Justice Cranston, responded to them. You can read the full High Court Judgement here.
Boats like the under-ten that supplies this small shop in Aldeburgh
will now find themselves with more quota
So what exactly happened, and why were the government taken to court by the UK association of fish producers organisations? In 2012, the Secretary of State for the Environment, Food and Rural Affairs proposed that a subsection of "consistently unused" quota would be taken from the PO sector (those large-scale boats whose quota is not managed by the government - see last week's post for an overview) and redistributed to the small-scale fleet. As UK fisheries management is now regionally devolved (to England, Wales, Scotland and Northern Ireland), and the reallocation decision was an English one, the government intended to take quota only from English vessels. However, as they did not have full information on quota holdings per vessel, the government used PO membership as a proxy for nationality.

As discussed last week, despite the originally geographic intention of POs, membership is now widely spread throughout the UK regions (and even further afield, with many non-UK owned vessels members of UK producer organisations). Geography can have very little bearing on PO membership (and even on licensing, as boats fishing at Brixham - or even Bilbao - could be licensed "Banff"). In early 2012, therefore, the English producer organisations chosen as the victims of reallocation not only represented 301 English licensed vessels, but also 60 Scottish licensed vessels and 11 Welsh.  The government excluded these Scottish and Welsh licensed vessels in English POs from the reallocation scheme. However, 27 English vessels also happened to be members of Scottish or Northern Irish POs, and these lucky boats also didn't have any of their quota reallocated. This meant the costs of the policy fell only on those English licensed boats that were also in English POs.

How much quota was to be reallocated? The small-scale fleet quota holdings are only a tiny proportion of those held by the large-scale fleet. DEFRA's proposal was to reallocate a proportion of those species that had been consistently underused (so neither caught, leased or swapped for a number of years in a row; with 2007 to 2010 as the reference period), if those species were also consistently highly-used by the small-scale fleet (considered to be the case if over 90% of the under-ten pool allocation had been caught). After all these calculations, the amount of quota to be reallocated stood at around 0.1% of total UK FQAs - that's 0.4% of the FQAs held by the English producer organisations who were to fall prey to reallocation.

UKAFPO's claims

1. The crux of UKAFPO's grievance was that the Government's 'gift' of quota to the small-scale fleet in 2012 deprived a section of the large-scale sector, without compensation, of a valuable entitlement. This deprivation went against the legitimate expectations of quota owners and interfered with their property rights. Since introducing FQAs, the government had stated, and acted as if, FQAs were the property and possessions of fishers on repeated occasions. They had classed them as assets, assented to their use for security as bank loans, and used them for the purposes of calculating capital gains tax. The government had also explicitly stated that unused quota would not be taken away from fishers. Because of this, fishers had a legitimate expectation that no reallocation would occur.

2. The high value of this entitlement was further stated by UKAFPO. They had the quota to be reallocated valued three times: the first valuation was £1.9 million; the second £1.065 million; and the third £1.405 million (and that's only 0.1% of total FQAs! Big business indeed). This meant that reallocation represented a considerable cost to quota owners, UKAFPO argued, many of whom had invested significant amounts of money - often borrowed - in purchasing their quota holdings.

3. UKAFPO completed their triptych of greivences with the claim that the reallocation was also discriminatory, as it only taking quota from those English licensed vessels that were members of English POs, and not from all UK vessels or even all English licensed vessels. This was unfair discrimination against a section of the industry.

Greenpeace and NUTFA's position

Greenpeace and the small-scale fishers' association NUTFA (standing for new under tens fishermen's association) intervened in the case in support of the government. NUTFA's position was clear - they wanted a more generous distribution of quota to the under ten-metre fleet, for past wrongs to be redressed, and for quota allocation to take into account the environmental and social criteria that smaller boats can often fulfil. Greenpeace, who in 2012 had formed a historical alliance with NUTFA, also argued that small scale boats were inherently more sustainable, and that as the Common Fisheries Policy recognised the importance of sustainability in its preamble, redistributing quota in that direction was simply follow the edicts of the CFP. Furthermore, Greenpeace importantly argued that the right to fish was a common property belonging to the nation, so could not be 'possessed', and treating FQAs like property was therefore against UK law.

The Judge's decision

Below I'll go over the key reasons Judge Cranston gave for his verdict in favour of the government.

1. Legitimate expectation: Judge Cranston observed that it was true the government had both indicated, and acted as though, quota holdings were inviolable property on numerous occasions. However, he argued that since 1999, despite repeated assertions of this nature, the government had not been consistent or unambiguous in these assertions. Indeed, the government message had been rather confused: the government had, on numerous occasions, also contradicted and qualified these assertions of quota-holders/ rights. 

A legitimate expectation, Cranston argued, "can be based only upon a promise which is clear, unambiguous and devoid of relevant qualification". This means that although the government had stated - and acted as if - quota holdings were property, neither these statements or actions had been "clear, unambiguous or devoid of relevant qualification". This is because both in official government documents, the government had emphasised ministerial discretion regarding the future management of quota. Here, Judge Cranston drew both on EU jurisdiction and on Greenpeace's arguments, arguing that "there was "some force in the Interveners’ point that statements about fishing quota and the fixed quota allocation system have always to be understood against the background that fish are a public resource".

 2. Deprivation of a valuable asset: Interestingly, Justice Cranston concluded that he believed FQAs were a possession, and could be legally recognised as such. However, he questioned the over-a-million pound valuations of the quota holdings to be reallocated. This is because only unused quota was to be reallocated, and the owners of this quota had thus clearly made the "business decision" to neither catch, lease, sell or swap this quota - in fact, to do nothing with it - the high valuation could only be "purely theoretical". In effect, as the amount to be reallocated had, year on year, actually sat dormant, in reality it must have had no market value.

So, although the FQAs were possessed assets, the claimants would only have grounds for grievance of them being taken away if there had been "material economic consequences”. In this case, as the reallocated quota had been consistently unused, and thus provided no economic benefits for the entirety of the reference period, there had been no negative economic consequences of reallocation. He further argued that although English PO members had had an asset taken away from them, this asset was in its nature an unstable one, and the reallocation had been done by the government in a fair and well-considered manner, based on ample consultation with the POs in question.

3. Discrimination: UKAFPO's discrimination case rested on the fact that only English licensed vessels in English POs had their FQAs reallocated. In response to this, Justice Cranston pointed out that this unsatisfactory state of affairs was as much the fault of the POs as it was the fault of government. DEFRA had tried to obtain data from POs in order to identifying the vessels that had consistently left quota unused, but none of the POs had responded to these requests.

Neither environmental sustainability, or the all-important property rights argument, were given any bearing in the decision. As such, the Greenpeace reporting of their victory with the soundbite "judge: no one can own the fish in the sea" was somewhat disingenuous, as Cranston only used these words to summarise the environmental charity's own position, and not as his own views. Nevertheless, the results were the same, and there are suggestions that the Judge was swayed by the Interveners' case, even it wasn't used in his concluding judgement.

The outcome of this important case is that, when it could easily have gone either way, the right to fish in the UK has not been privatised. This is very good news for those that would have lost out (the government, the public, non-quota owning fishers) and very bad news for those who (with good reason) believed the right to fish already had been privatised, and had invested as such in the future (quota-owners, and the banks that used quota as collateral).

Importantly, the judge's admission that FQAs could be considered possessions, and his conclusion that it was the non-economically significant nature of the unused quota in question that justified reallocation, still leaves us in somewhat murky waters. It's therefore important that we continue to pay close attention to the management of our seas.

Saturday, 13 July 2013

No one can own the fish in the sea: part one

It's been a historic week for the UK environment. This Wednesday, the fish in our seas were snatched back from the brink of privatisation. Closing a case in the UK High Cout, Mr. Justice Cranston declared that the right to catch fish was a public good, and that it could not be privatised. This decision, in a case brought against the government by the United Kingdom Association of Fish Producers Organisations (UKAFPO), ends a landmark  battle in a long and fractious war over the right to fish. It's a hugely significant ruling, so I'm going to spend the next couple of blog posts talking about the legal status of fish quota in detail.

Small-scale fishers outside the High Court.
For the last decade, fishermen operating out of boats that are less than ten metres long have faced a cruel struggle for existence. Their proportion of the United Kingdom quota (the total amount of given species, in tonnes, that UK fishers can catch nationwide, as determined under the EU Common Fisheries Policy) is absolutely tiny. This has meant that the quota regime, often considered a conservation measure, has been pushing smaller, more sustainable fishers out of business, and destroying coastal communities around Britain and Northern Ireland.

There is a famous statistic that small-scale boats make up 75% of the fleet, yet have access to less than 4% of the quota. Although this statistic isn't an entirely accurate representation of quota allocations (some small boats fish only for shellfish and not for quota species, so don't need quotas, and others have gone out of business due to their dire allocations over the last decade so are not represented) it gives a good example of why coastal communities, which disproportionately rely on the small-scale fleet, are in such trouble. These stringent limits are compounded by the fact that fishermen can have trouble avoiding quota species at certain times of the year, which results in having to throw large numbers of dead fish back into the sea.

"I’m allowed to catch 1.4 kilo a day of cod. That’s half a cod. And I can dump up to a tonne a day." (Channel fisherman, 2011).

This despicable situation, for both communities and the environment, came about almost by accident. The UK government has regulated boats over ten metres long on a strict quota system since the early 1980s. During most of this period, boats under ten metres long were largely ignored. This is because for a long time the government did not keep records of small boat catches, instead simply guesstimating an amount and inserting it into national management measures focusing on the large-scale and industrial fleet.

The large-scale fleet, on the other hand, had a complex management regime throughout the 1980s and 1990s, within which each boat was allocated a certain percentage of the total national catch every year, or sometimes every month, based on their historic catch records. Dictating the total amount of a huge range of different fishes that each boat should be allowed to catch was a massive headache, and perhaps unsurprisingly, the government didn't always do the best job. Frustrated, fishers asked if they could have more control over the allocation of their quotas. Over time, the government gradually devolved quota management for large boats to regional member bodies called "Producer Organisations".

These regional Producer Organisations had a much closer relationship with their members than the government, who were responsible for fishing boats around the entire coast, could ever have. Because of this, they were more sensitive to fishers' needs and far better at managing quota. Different POs had different methods of doing this: some pool and share out their members' quota, others allow boats to work to individual limits, and others mix management methods. POs would also swap or lease annual species allocations with other POs, and even other countries, to make sure their members' quota matched what they were catching, or wanted to catch, as seasons and stock levels changed.

At first, the government shared out annual quota between boats based on rolling track records of catches over the three previous years. Then, in 1999, this was switched to 'fixed quota allocations' (FQA). These FQAs meant that the same fishers had the same percentage of the UK's quota every year. This created a stable entity (the right to catch the same percentage of the UK catch, in perpetuity). This stable entity could further be bought and sold. For many years, the government had paid fishers to leave the industry - decommissioning - but allowing people to retain valuable FQAs when their boats were sold was a far cheaper "golden handshake". Thus, when those granted FQA in 1999 decided to retire, they owned a new and potentially valuable commodity: the permanent, saleable right to catch a given percentage of all the UK's fish every year. This quota could be sold, either to other fishers wanting to increase their individual holdings, or to POs, who were keen to acquire more potential landings to be shared between their members. As the amount that could be caught annually (of which quota was a percentage) fluctuated year on year, POs and fishers were keen to buy quota even beyond what they could catch, because if in the following year total allowable catches dropped dramatically, the same quota share would yield far fewer fish.

This quota could also be rented out. Quota "landlords"- people who didn't fish, but made a profit by owning the right to fish and leasing it to others - were termed "slipper skippers". Over time, this buying, selling and leasing increased, and an informal, and highly financed, quota market developed. The extremely high costs of quota meant that the larger the fishing company, the more quota you could buy - either because you had larger profits, or greater access to finance in the shape of bank loans. Indeed, many fishers even leveraged their quota holdings as security to buy more quota, or a better boat.

As quota began to be bought and sold, the geography of POs mattered less, and PO membership was based less on locale, and more on which PO offered the best deal for its members, though some POs (such as Shetland) retained their regional nature. The more quota a PO owned on its "dummy vessel" (which was a boat only in name, for 'storing' quota not attached to the licence of a real vessel), the more fishers would want to join, especially if this was shared between members. These dummy vessels also store quota for slipper skippers and other non-active quota owners. The geographical imperative to join any given PO was replaced by an economic decision taking into account the attractiveness of a PO's existing quota holdings. For a PO, the decision to accept or decline a new member would be based on - have you guessed it? - how much quota that prospective member brought with them.

The local nature of PO management was also weakened by "quota hopping": a process by which foreign companies, from places such as Spain and the Netherlands, bought up UK quota and, though fishing from their continental homes, had to manage this purchase as if they were based in the UK. This transnational ownership proved extremely unpopular with UK fishers, who saw it as explicitly going against the principle of 'relative stability' that national allocations were based on. For a time in the 1980s, the UK government attempted to prevent foreigners from fishing with UK fishing rights (then allocated on a vessel's recent track record) completely. In the early 1990s, the European Court found these measures illegal, as they discriminated against EU members. However, foreign fishers using UK quota must still fit within the UK management system, and have their quota managed either by the government (which, as far as I am aware, none do) or a UK-based PO (some of which, such as the Wales and West Coast, now represent entirely, or almost entirely, foreign fishing interests).

During this whole period, the small-scale fleet operated largely outside the quota system. Indeed, for years small-scale boats were free to catch almost as much as they liked. The guesstimate for small scale catches inserted into the early quota calculations was never checked against actual landings. This lax management was relatively attractive for fishers, and many left the quota-managed large-scale fleet to join the free-and-easy, no-logbook "under tens". This management differentiation led to the creation of a special kind of boat that was (in the words of a fisheries manager) "as wide as it is long, and with the catching power of a vessel twice its size". These "super under-tens", or "rule beaters", had all the power of large-scale boats, but took advantage of the regulatory freedoms that had been allowed to smaller craft. Large under tens (9.5 to 10m vessels) land significantly more fish in terms of value and volume than the remainder of the inshore fleet combined. Indeed, many fishers during this era decided to sell their large boats (and their quota) and buy a vessel under ten metres long, so they could join the largely unregulated small-scale fleet.

However, a sea-change occurred in the early years of the 2000, especially from 2002 to 2005, when EU cod quotas were set at a very low level. During this period of low quota limits, the government began to worry about catches by the small-scale fleet. Slowly, quota limits began to be enforced on smaller vessels, and the government tried to match the catches by small vessels to the arbitrary amount that had been earlier set for the under-ten pool. This led to a number of clashes between the government and small-scale fishers, who argued that everyone knew the small-scale quota limit was arbitrary, and thus it could not be fairly enforced.

The numerous small scale fleet, which had never been truly represented in quota allocations, had got even bigger since the early 1980s when that arbitrary figure had been attached to it. As quota limits were enforced, fishers found themselves operating under unworkable limits, and coastal communities began to suffer. Suffer, and slowly die out. Fishers laid off crew, working vessels that had previously had five crew with only two, or, more dangerously, alone. The low quota limits for over-ten vessels saw similar contractions within the large-scale fleet. Fishers left the industry, or went part time. Net makers and boat builders went out of business. Processing plants and fish markets closed down. Sons were warned to seek alternative employment, to go into anything but fishing. The lack of enthusiastic youngsters, and the now unaffordable expense of hiring locals on a traditional share, led to those large boats that could still afford to take on crew switching to low-paid Filipino agency workers. Often, border controls meant these men were not allowed to come ashore.

"They’ve killed the community. There’s no community left. This was a fishing community, but there’s no community now: you're talking to it, three boats, three men. The Common Fisheries Policy has killed small fishing communities." (North Sea fisherman, 2012).

To compound matters for the small-scale fleet, unlike the larger boats in POs, they had no individual allocation of quota to be independently used, bought or sold. If a small-scale fisher, who was allocated nothing in recognition of his historic catch, decided to buy quota from a larger boat, he would be expelled from the small-scale pool. The only option was to lease quota from bigger boats, POs or slipper skippers, trapping smaller boats in a fishing rights rental market.

Thus, by 2005, small boats found themselves in a position whereby almost all of the 'right' to catch UK fish had been carved up and given freely to fishing boats over ten metres long, leaving very little for the vast majority. If small boats wanted to catch more fish than their tiny allocation, they were forced to rent it from the large-scale fleet. If they wanted to leave the industry, they couldn't hold on to - and profit from - their "right" to fish, as the big boats had. The government had granted the legal right to fish almost entirely to the industrial and large-scale fleet, and the majority of small boats had been left with barely any rights at all.

Over the course of the last few years, the obvious injustice of this situation led to increased talk about quota reallocation. Reallocation meant simply taking a percentage of the quota from the large-scale fixed quota allocation, and instead putting it in the under ten metre pool. Small scale fishers argued that this was fair, because year on year, large scale boats hadn't even used all of the quota they had bought.

This solution, however, wasn't as simple as it seemed. Many fishermen and producer organisations had spent significant amounts of money buying quota from other fishers who had retired or left the industry. These financial risks had been intended an investment for the future. Indeed, some of the fishers taking on these risks were buying, at significant cost, from fishers who had sold their quota to move into the small-scale fleet in the golden period of unrestricted fishing. Thus, to reallocate something that one fisher had purchased - and, on top of that, to potentially give it back to the person they had purchased it from - was grossly unfair, and threatened the very financial stability of the industry, as well as rewarding those who, rather than invest in fishing, had simply decided to evade the rules.

This is the background to the recent court case. Within the context outlined above, in February 2012 Caroline Spelman, then Secretary of State for Environment, Food and Rural Affairs, decided to go against the previously agreed FQAs and reallocate a proportion of quotas that hadn't regularly been used by PO members to the small-scale fleet. In response to this UKAFPO, a national body that represents the POs en masse, took the government to court.

Interestingly, this is not the first legal battle the government has faced over quota: small scale fishers previously resorted to legal action over their punitive treatment by the government (see R. v Bossom, 2006). These small boats, however, didn't have quite the financial clout of the large-scale sector, as one of the fishers in question explained:

"we formed the national association to take judicial review against the government, and that was the beginning of the fight. We spent £70,000, the only people that got rich were the lawyers, we ran out of money... We couldn’t afford to take the government to court, it's as simple as that. Most small boats can’t put money in to that kind of thing, because we’re going bankrupt." (Small-scale fisherman, 2010)

This time, in contrast, the "national association" representing small-scale boats mentioned above (the New Under Tens Fishermen's Association) was on the side of the government. Also intervening in their favour were were Greenpeace, who were keen to favour the more sustainable end of small-scale fishing, and ensure that the right to fish could not be bought and sold.

I'll leave it to the next post to talk about UKAFPO's claims in court in detail. I'll also go through Justice Cranston's responses to them, and the implications for future fisheries. You can see the full court ruling here.

Thursday, 4 July 2013

Gandalf's Garden

Gandalf's Garden was a London based mystical community, and one of the most wonderfully hippy happenings of the late 1960s. Rejecting the more druggy aspects of psychedelia, the Gandalf's Garden collective instead celebrated meditation, mysticism, occultism and yoga as the path to enlightenment.

The focal point of the movement was a Chelsea craft shop/community centre with event space, homeless respite and free food. Gurus, spiritual teachers and monks from around the world came to speak at the centre about their beliefs and practices. The community was named after the white wizard Gandalf, a character in  J.R.R. Tolkien's Lord of the Rings. When writing his fiction, Tolkien described his intention as being the creation of the ancient poetic legend that the culture of England, having been so continuously invaded and remoulded over the centuries of antiquity, had lost from its oral history. Gandalf's Garden continued in this tradition of imaginative, playful community, and finding new yet traditional meaning for the way we live our lives.

In 1968, Gandalf's Garden's founder, Muz Murray, began publication of a magazine to disseminate the spiritual knowledge and beliefs of the community. In the first issue, Muz expains the choice of the name:

"In the land of middle earth under threat of engulfment by the dark powers, Gandalf unites the differing races, mistrustful of each other through lack of understanding and communication, in a final effort to save the world. The crusader spirit of Gandalf is echoed in the cry of the Now Generation seeking an Alternative to the destructive forces of today's world, by spreading human love and aid, for the unity of the people of earth."

Just as in 1968, we are now living in a time of revolutionary change, and the ideas of Gandalf's Garden are as important, interesting and relevant as they were half a century ago. With this in mind, I've uploaded copies of the Gandalf's Garden magazine onto the magazine and journal hosting site Issuu. Here you can read articles on a wide range of fascinating subjects: humour and satire; art; war; education; diverse mystical approaches encompassing Ghandi, tibetan buddhism and Aleister Crowley; music, featuring John Peel, CY Laurie and Tyrannosaurus Rex; and my personal favourite (in issue 5), a guide to speaking to and cheering up lonely people in parks.

I've uploaded Gandalf's Garden so people can read the magazine and the community's ideas can be disseminated, as I believe this is in the spirit of the original aims of the writers and artists who created it. I haven't however made the issues downloadable. The Garden was established by Muz Murray, who is now a mantra yoga master, and teaches yoga and meditation as well as running a charity and trust in Tibet. 

You can buy a CD and download pack of the full collection of Gandalf's Garden from Muz personally, and although I believe it is in the spirit of the original to share the ideas the magazine contains, I do not want this sharing to mean that the creator of these ideas is not monetarily rewarded for them, especially considering what the money raised by any purchase will be spent on. I therefore urge anyone who discovers and enjoys Gandalf's Garden through these issues to show their appreciation by purchasing the full downloads from Muz, or contributing to his charity.

For only £11.99 (easily payable through Paypal), you can immediately download the full text of all the Gandalf's Garden issues, including contributions from John Peel, Spike Milligan, Joan Baez and poet Christopher Logue. This Download pack also gives you a wealth of resources beyond the six original issues. This includes beautiful unpublished artwork (such as the cover art for the never-made seventh issue), then-and-now photos of the Gandalf's Garden community, lengthy reminiscences from members, press clippings and articles about the Garden published between 1968-1972, and a longform article by the Garden's founder, Muz, on how the community came to be. Despite already having access to all the magazines, I purchased the download and it was the best £12 I have ever spent. I urge you to do the same.

I will be in contact with Muz shortly, and if my uploading has in any way reduced the number of people buying the downloads, I will remove the issues from the internet. Instead, I hope and believe that by sharing of the magazine I will increase its reach, encouraging more people to tune in and helping foster a new generation of Gardeners. If the number of downloads has increased, the magazines will remain open access. As I said before, if I feel my actions are mistaken, and that I'm taking food out of the mouths of Indian orphans by sharing the resource online, they are off in a flash. Therefore, if the Garden pleases you, please contribute to its creators with a purchase, and keep the love a-flowin.

                                                                    Gandalf's Garden by CaseyDeiss

That all being said, you can currently read Gandalf's Garden online here. Unfortunately, due to the poor quality of my scanning, not all the pages can be read in full. I again urge to you purchase the full download so you can enjoy the magazine in all its glory, for less than two pounds per issue. It's both a historical delight and a compendium of spiritual and artistic treasures, and hopefully we will see many new 'Seed Centres' spreading the GG message of love and peace opening around the world in the coming years.