All coming out in the Wash

The approaching expiry of the Wash Fishery Order has brought the growing disquiet about local fishery management to a head. John Worrall reports…

There is a funny smell around the doings of Eastern IFCA.

It isn’t the whiff of rotting cockles that couldn’t be fished because they had to be left for overwintering birds, but then died before winter came on. Nor is it a waft from mussel lays no longer worked for want of seed, because a wind farm was built where the tidal swirl deposits spat and big cables and rock armour now prevent dredging.

No, this assault on the olfactory sensors is the stench of distrust, and that is a sad-going-on-disastrous state of affairs.

It’s been building up for a while, but has been thickened by the approaching expiry – in January 2023 – of the Wash Fishery Order 1992 (WFO), which governs the cockle and mussel fisheries. EIFCA is proposing to replace it with a byelaw/permit scheme – agreed in principle by the committee at the statutory quarterly meeting in March 2020 but which, the industry says, would replace certainty with huge uncertainty, because the WFO’s fixed entitlement system would be swept away.

Things came fully to a head at the authority’s most recent quarterly meeting on 10 March –held virtually because of Covid restrictions – when, during the morning session, something completely unprecedented happened: a proposal by the CEO was voted down by the authority.

The Wash fleet is made up of boats from King’s Lynn, where space is a bit tight in the tidal Fisher Fleet…

Dissent, let alone defeat, is unusual. In the five and a half years that this CEO has been in post, the quarterly meetings (not counting the most recent, for which the minutes have yet to be approved, although Fishing News recorded the whole thing and has a full transcript – all 69 pages and 37,258 words of it – covering the main two items) have generated 231 motions, of which 217 were carried unanimously. Occasional votes against or abstentions were scattered among the other 14.

The motion that was lost came on ‘Action Item 8 – Review of Eastern Inshore Fisheries and Conservation Authority (IFCA) Constitution and Standing Orders’. The CEO was proposing changes to the wording relating to voting rights of industry members of the committee.

In general terms, their voting rights are governed – as are voting rights on any public body – by the Nolan Principles and by the more specific Localism Act 2011, which says they cannot vote on issues in which they, or a close relative or associate, have a disclosable pecuniary interest (DPI). Nor can they actually contribute to debate without dispensation – although dispensation is more or less a given on an IFCA, because industry members are there to contribute knowledge and expertise.

The meeting got off to a dubious start when one authority member – who, though not a fisherman, is a man of many parts including fish merchant – announced that he had been told by officers that he had a DPI in the Wash cockle and mussel fisheries because he buys cockles from the Isle of Skye and rope-cultured mussels from Cornwall, and DPIs are species-specific.

When Fishing News later asked the CEO, by email, to be pointed to guidance or precedent on that species-specific – and location non-specific – principle, he replied: “The overall objective of this approach is to seek a balance between enabling contributions whilst maintaining integrity. We have not based our assessment on DPI conflicts on guidance or precedent save for that encompassed in the legal advice from, and discussions with [legal advisors] that has informed our approach. As such there is nothing to direct you to in that regard.”

But greater alarm bells had already been set ringing by the first of his proposed wording changes, which was the insertion of a clause – here in italics – into paragraph 9.11, which then read: “A member may, unless they have an associated declared pecuniary interest, put forward a motion for debate at any meeting.”

… and from Boston. The boats were built and designed to work the three main Wash fisheries – shrimps, cockles and mussels – except that it’s now down to two.

The second proposed amendment added to that by providing that a member: “… will not raise a motion at a meeting that has not been previously included in the agenda or within a particular paper or take part in any discussions at a meeting of a matter for which I have a disclosable pecuniary interest.”

The CEO’s accompanying report said that legal advisors had reported no changes in law that affected EIFCA – but the revisions, on which they had advised, were, he told the meeting, to protect members from legal jeopardy under the Localism Act 2011.

“I understand the optics and the timing of this,” he said. “It’s unfortunate that it’s this time, and members of the industry will perceive, because there’s a lot of sensitivity at this time, that this has been done with an ulterior motive.”

Fishing News subsequently pointed out that while the relevant sections of the act, 30-34, preclude voting and discussion without dispensation by those with a DPI, they say nothing about putting a motion forward – and that the industry view was that those two amendments had nothing to do with protecting members from legal jeopardy, and everything to do with tightening the CEO’s personal control. He responded: “The review of the existing wording raised the question of whether [putting forward a motion] is effectively analogous with voting. If so, then it would possibly be contrary to the Localism Act 2011 and almost certainly would be contrary to the Code of Conduct.”

In which case – as more than one industry member pointed out at the meeting – they must have been breaking the law for the past decade. When one insisted that they did indeed need to be able to put motions forward, even if they couldn’t vote, the CEO said: “I think there are safeguards in constitution and standing orders which allow members to talk to officers.”

That wasn’t much of a reassurance, particularly the ‘allow’, when the industry has come to regard EIFCA responses as all too often an exercise in listen-and-dismiss.

Mussels were the winter fishery with seed dredged up in the northwest corner of the Wash and put on private lays.

The motion was lost by 10 votes to seven with one abstention, not least because all industry members were able to vote as it was an EIFCA procedural matter rather than a fishery issue.

But it was in the afternoon session that the ‘sensitivity’ came fully to the surface, stemming firstly from that committee decision back in March 2020 to follow the byelaw route for the replacement of the WFO, for which the background paper had included the comment: “Officers have also been advised that DEFRA are not considering extensions to orders in any case.”

This was said to be based on a personal communication with the relevant DEFRA person, and was effectively saying that the byelaw route was the only option. The authority had duly voted for that option.

However, in the papers for this latest meeting, EIFCA officers gave a correction. “Within Action Item 10 (39th Eastern IFCA meeting, 11 March, 2020), it was reported that DEFRA had advised that Regulating Orders were not being extended; this was on the basis of personal correspondence with the DEFRA lead officer for Several and Regulating Orders.

“The same officer later clarified that, although this was based on a recent rejection of an extension to an order, this was not a general DEFRA policy.”

And then it turned out, from other correspondence seen by Fishing News, that the personal communication was a mere verbal conversation – and further anecdotal evidence indeed suggests that the DEFRA man’s comments may have been misinterpreted. Either way, it begs the question of why ‘advice’ presented as relevant to an authority decision had not been obtained in writing.

Fishing News tried to get to the bottom of it, asking DEFRA firstly for clarification on policy on renewal, extension or replacement of fishery orders.

The mature molluscs were then dredged…

A spokesperson said: “Essentially, DEFRA does not hold a preference, as the decision lies with the holder of the order and the process involves consultation with stakeholder groups.”

Fishing News then asked for clarification on what the DEFRA man had said to EIFCA officers, to which the spokesperson replied: “As the procedural process is IFCA-led, we do not intend to comment on specific advice given.”

More dodgy optics there, then.

The Wash historically has had three main fisheries: cockles and mussels – both governed by the WFO – and shrimps, pink and brown. But environmental designations and the accompanying precautionary principle have come increasingly to bear, and among other things have seen pink shrimps, associated with Ross worm reefs, effectively put off limits.

The several mussel fishery has also gone for now, with the loss of that local seed source and with natural stocks suffering lately from an affliction that is currently being researched. Its revival is to be hoped for, because it’s part of the bigger picture of the shellfish biomass which the industry shares with those overwintering birds.

As it happens, the shrimp fishery, which achieved MSC certification in January last year, is currently undergoing its own byelaw process, with a proposal – driven by the precautionary principle with regard to possible damage to the seabed (though shrimping has been going on for generations) – to limit the fleet to a rolling five-year average of 1,101 trips annually and a maximum in any one year of 1,746. And back in the days when there were still three fisheries rather than two, that might have been enough for the Wash fleet, insofar as shrimping trips, depending on boat size – and 14m is the maximum length allowed in the Wash – can be of 12, 24 or 36 hours from tide-bound King’s Lynn and Boston.

… to be exported live – in admirably recycled onion bags – to France, where buyers did their own depuration.

There is whelking as a fall-back, but the more boats that do it, the less it pays.

But now, the industry faces the end of the stability of the 30-year WFO with its fixed entitlements, and its replacement with a byelaw/permit system without fixed entitlements. Moreover, the byelaw would be reviewed at least every six years, but potentially more often, which makes business planning and funding much more difficult.

The scale and nature of concerns were summarised in an industry email recently sent to authority members, local MPs, DEFRA and others, which said among other things: “The Wash is a very protected area, and the fact that we have been able to have a fishery for so many years proves the effectiveness of the Wash Fishery Order. The order has not prevented the fishery from being managed by the sea fisheries committee or Eastern IFCA.

“EIFCA open the fishery when they want, they close when they want, they decide the TAC, they decide the days, they decide the sands to be fished, they can close the fishery early before the TAC is achieved.

“We are not against change, and we are not trying to keep the status quo. In fact, we want new blood to be able to come into the industry…”

There is currently no mussel fishery, because a wind farm was built where the tidal swirl of the Wash deposits most of the spat, and where dredges can’t now go.

The industry, in essence, wants modern-day circumstances, conditions and environmental considerations to be managed through a new fishery order with the long-term certainty of entitlements which are essential for a fleet, still mostly made up of family enterprises, that has nowhere else to go.

The CEO says he has taken legal advice from specialist lawyers which shows there would be no material differences to the industry under a byelaw compared to an order – but he has refused industry requests, including by industry committee members, to release that advice.

Particularly dodgy optics there, then.

It is not too late to switch to an order, because officers acknowledge that the current phase of the byelaw process is the same as would be the process for a new fishery order, and to that extent, both options remain open. But there is a degree of urgency either way, because these things take time, and no one seems clear on what happens if a new mechanism isn’t in place by January 2023.

At this stage, EIFCA is portraying the byelaw simply as a mechanism to which details – not least the crucial eligibility-to-fish criteria – will be added later after further consultation and negotiation.

But one of the details is an intriguing and as yet undefined concept: the creation of two categories of permit – 1 and 2. During a presentation at the most recent meeting, Luke Godwin, senior inshore fisheries and conservation officer (regulation), said:

“Two categories of permit… [is] all about us being flexible for the future… If we saw any benefit in having a permit which could be, for example, a way of getting into the fishery, or a temporary permit, then we could use this mechanism. Whether or not we use them is another question.”

Byelaw clouds now are building in the cockle fishery…

In which case, imagine this. In one particular year, there is a big cockle TAC after several small ones, and the Wash fleet – which these days really only has those cockles and brown shrimps to work with – is looking forward to a long cockle season to rebalance the books.

But then EIFCA, faced with the cost of policing a longer season, sees its Category 2 licences as a way of allowing in more boats to keep the season short and raise more permit fees. What would it do? Or more particularly, what could the Wash boats do to stop carpetbaggers coming for a slice of the good times, and leaving them to make what they could of the bad? And if they couldn’t do anything, would the 60 or so boats all have to go shrimping earlier because the cockle TAC was finished? And because many boats are not big enough to carry refrigeration, would more 12-hour trips quickly exhaust the proposed 1,746 maximum? And would local boats then be out of work until the next cockle season? And would crews hang around?

Or would the Wash fleet gradually wither away?

It is there that the optics merge to look like a strategy, because less fishing would certainly make IFCA officers’ lives easier.

… and at the present rate, much of the Wash fleet could be heading into the sunset.

But there’s nothing like adversity to make common cause, and this particular adversity has seen the fleet accumulate a big war chest for legal action. Its lawyers are now at work.

Two industry members resigned from the committee in exasperation during the afternoon session of that latest meeting, although one later withdrew his resignation and the other was nearing the end of his term anyway. But when another industry member suggested that things could move towards a dictatorship, the CEO responded: “I can’t accept this ridiculous suggestion, frankly, that this is a dictatorship. That’s rather offensive.”

But it comes back to those optics yet again, because, as Fishing News pointed out to him, if it looks like a duck and walks like a duck… He found that rather offensive, too.

This feature was taken from the latest issue of Fishing News. Subscribe here for more great content on the UK and Irish commercial fishing industry.