The case for change
- Key promises made during the Brexit referendum have not been delivered. Scotland now faces, for example, a risk of retaliatory trade measures being imposed if the UK Government seeks to reduce or deny access to UK waters
- Brexit has created major new barriers to seafood trade, significantly increasing certification, packaging and transport costs for seafood exporters to the EU. For the Scottish salmon sector alone, these additional costs are estimated to be £3 million per annum
- Leaving the EU has ended freedom of movement, contributing to an estimated 20-25% of vacancies being unfilled throughout the seafood industry and potentially worsening population decline in coastal and island communities
- Constitutional limitations – such as international relations being a reserved matter under the Scotland Act 1998 – significantly constrain Scotland’s marine interests, and UK Government driven legislation, such as the Internal Market Act and Retained EU Law Act, risks impacting on environmental protections and the powers of the Scottish Parliament and Scottish Government to develop policies and legislation for Scotland
Although the Scottish marine sector has had many successes, the full powers of independence could provide the opportunity to support it to reach its full potential. UK constitutional arrangements and current and historic approaches of UK Governments have – as will be shown in this paper – consistently not prioritised Scotland’s marine interests to the same extent that an independent Scotland could.
During European Community accession negotiations in the 1970s, the UK Government said of Scottish and other UK fishing interests that: “In the wider UK context they…must be regarded as expendable”. More recently Scotland was removed from the EU against the wishes of a majority of voters in Scotland in the 2016 referendum.
Both of these, and the Trade and Cooperation Agreement (TCA) the UK reached with the EU following Brexit, have had significant impacts for our marine sector, coastal and island communities, and our wider economy and society., 
The costs of Brexit and the TCA
Former Prime Minister Boris Johnson portrayed Brexit as making the UK “an independent coastal state with full control of our waters”,  while former Foreign Secretary Dominic Raab characterised the TCA as a “great deal for the fishing industry”. The actual situation has been very different.
As shown in Table 1 below, there has been a difference between commitments made by UK Government Ministers regarding the benefits of Brexit and what then transpired.
Table 1 – Comparison of Brexit commitments by UK ministers and actual outcomes
What has happened - Joining the EU was a pooling and sharing of sovereignty for mutual benefit; in much the same way that the UK signing free trade agreements necessitates the pooling and sharing of sovereignty and the loss of full regulatory autonomy. By committing to access and quota arrangements in the TCA, the UK has given up some of its powers as an independent coastal state in terms of its relationship with the EU.
What UK Ministers said - “Access to UK waters will be on our terms, under our control and for the benefit of UK fishermen.” Former Defra Secretary of State Michael Gove (4 Jul 2018)
What has happened - Under Annex 38 of the TCA, access to UK waters for EU vessels is guaranteed until at least 30 June 2026, with the ability to unilaterally prevent or restrict access thereafter constrained by Article 500, and subject to retaliatory trade measures under Article 506.
What UK Ministers said - “There’s an absolute commitment from the prime minister and from all of us in cabinet that when it comes to shaping new migration policy the economy comes first.” Former Defra Secretary of State Michael Gove (22 Jun 2017)
What has happened - By ending freedom of movement from the EU and imposing new visa requirements for qualifications and salary thresholds, the UK Government has made it significantly more difficult to access labour and attract people to Scotland. This has directly contributed to an average of 20-25% of vacancies being unfilled throughout the seafood industry.
What UK Ministers said - “We will negotiate with the EU for access to their markets for trade, but we will have completely separate negotiations about access to our territorial waters.” Former Defra Secretary of State Michael Gove (2 Dec 2019)
What has happened - Article 506 of the TCA specifically provides for retaliatory trade measures in the event of restriction or denial of access to waters or failure to meet other TCA fisheries obligations, making a clear and unambiguous link between access to waters and access to markets; and with potential for tariffs to be applied to other economic sectors, or suspension of parts of the TCA as a whole, in some cases.
What UK Ministers said - “This government opposes erecting barriers to trade where none yet exist, or disrupting the commercial relationships that exist between this country and our continental partners.” Former Secretary of State for International Trade Liam Fox (21 Feb 2018)
What has happened - Due to the UK Government’s decision not to maintain alignment with EU regulations, seafood exports to the EU must go through a range of sanitary and phyto- sanitary checks, with exporters paying for any licences or certificate required. This has not been implemented in parallel for imports, causing disparity in costs and an un-level playing field for our seafood exporters., 
In contrast to statements from current Prime Minister Rishi Sunak that “I voted for Brexit, I believe in Brexit. I know that Brexit can deliver, and is already delivering, enormous benefits and opportunities for the country” recent analysis for the Resolution Foundation and the London School of Economics has estimated that Brexit will lead to a 30% negative output shock in the fishing industry. This will mean “a painful adjustment” and “increased job uncertainty and potentially big hits to livelihoods”; with fishing one of the hardest hit sectors in the UK.
Brexit’s impact on fishing quotas
In relation to North Sea whiting, for example, the maximum percentage of total EU and UK quota available to the UK under the TCA is 73.5%, compared to average UK landings of total UK and EU quota from 2015-2019 of 82.7%. There are similar reductions in North Sea cod, haddock and saithe quotas.
While the TCA has led to quota increases in some cases, these increases have predominantly been for a small number of species – mackerel, herring and sole, in particular. Many of the other quota gains made – particularly in the case of sole – are, however, ‘paper fish’ where quota has never been fully utilised previously, and where additional quota is not needed or wanted. This unneeded and unwanted quota is estimated by industry to have a notional value of £58 million. The fact that it cannot be used in practice substantially reduces the overall benefits of the TCA claimed by the UK Government.
Despite UK Government promises of annual quota negotiations, quota shares are – to some degree – fixed, even beyond the end of the adjustment period from 2026 onwards. This includes, for example, a 49% share of West of Scotland saithe, a 46% share of North Sea hake, a 34% share of West of Scotland herring, and a 15% share of Rockall haddock for EU vessels.
In contrast to the UK Government’s stated aim of delivering quota shares based on the principle of zonal attachment (i.e. fishing opportunities based on the shares of stocks physically located within the respective EEZs of coastal states), the outcomes in the TCA represent an estimated 229,000 tonne, or £281 million, shortfall compared to that aim.
Overall, rather than the net gain of £148 million by 2026 quoted by former Prime Minister Boris Johnson, a report produced on behalf of the National Federation of Fishermen’s Organisations indicates that, as a result of a range of factors such as new non-tariff barriers to trade, the UK fishing industry stands to lose £64 million per year as a result of the TCA, with total losses in excess of £300 million by 2026.
Additional trading and logistical costs
Even where modest quota gains have been made, these have been significantly outweighed by the huge new trading and logistical costs that have been incurred for our seafood sector. Many of these have been particularly harmful for our aquaculture sector and inshore fleet (with the latter constituting approximately 82% of Scottish-registered fishing vessels, and which are mostly classified as micro businesses) which derive no benefit from quota changes but still face the costs of new barriers to trade with the EU and wider disruption caused by Brexit.
Seafood industry representatives estimate, for example, that Brexit has led to a 30% increase in the cost of transporting products and a 50% increase in the cost of packaging.
Similarly, Export Health Certificates (EHCs) are estimated to have cost UK food businesses £60 million in 2021; alongside the cost of, and frequent delays in receiving, other necessary licences and certification.
For the Scottish salmon sector alone, EHCs are estimated to cost an additional £1.3 million per year, with overall additional costs for the sector as a direct result of Brexit estimated by industry to be £3 million per year.
Although the TCA avoided the imposition of tariffs, some shellfish exporters have estimated that the new barriers to trade with the EU have resulted in additional costs of £500-600 per consignment (regardless of size), making some exports unviable. As acutely time-sensitive products, seafood – particularly fresh and live produce – also risks losing significant value where customs inspections or certification checks are required to enter the EU, or where there is insufficient capacity or delays at UK ports such as Dover.
In some cases, Scotland’s ability to export some goods – such as shellfish from undesignated and class B and C waters – ceased overnight when the UK became a third country to the EU.,  Even where the export of some Scottish goods, such as fish feed, is possible, the need for new certification and checks at Border Control Posts in the EU has made exporting significantly more difficult and costly.
Other impacts of Brexit
In addition to the impact of the end of freedom of movement on businesses, Brexit threatens to exacerbate demographic challenges that Scotland – like most Western countries – is facing, such as an ageing population, a declining birth rate and rural depopulation.
Ending freedom of movement from the EU has reduced the labour supply into Scotland’s economy, including our Marine sector, and has compounded the risks of de-population in Scotland’s rural, coastal and island communities, as previously outlined in Building a New Scotland: A stronger economy with independence. This is a particular concern for areas such as Na h-Eileanan Siar where the population is already projected to decline by 16% between 2018 and 2043, and which depends on inward migration.
As a result of Brexit, Scotland now has fewer opportunities for collaborative research for our marine scientists due to the loss of freedom of movement and less funding available for scientific and environmental innovation. Scotland has, for example, lost out on access to almost three years of the European Research & Innovation Framework programme, Horizon Europe, damaging the reputation and competitiveness of our colleges and universities – including on research and innovation on areas of importance to our marine sector.
The scope, scale and prestige of Horizon Europe is globally unparalleled yet the Westminster government has taken two and half years to recognise the value of participation. Rather than the peripheral role in decision making that comes with the UK’s associate membership, EU membership would give Scotland the opportunity to be directly represented and actively participate in in the European Council and European Parliament meetings which decide the overarching rules for Horizon Europe and have a formal vote in the Horizon Europe programme committees which decide the priorities for the calls for proposals – including those relating to the marine sector where appropriate.
By losing membership of bodies such as the Scientific, Technical and Economic Committee for Fisheries we will find it harder to influence key legislative, regulatory, technical and scientific arrangements relating to the marine space we share with other countries and which are critical to the success of our marine sector.
The current constitution and its limitations
Beyond Brexit, the wider UK constitutional settlement – and current and historic UK Government policy – has hindered rather than helped Scotland’s marine sector to reach its full potential.
Significant legislative powers essential for achieving Scotland’s full marine potential are either reserved to Westminster or are only executively devolved, with the latter meaning that Scottish Ministers may have certain duties and powers but cannot draft or amend legislation. Even where limited powers allow for the delivery of positive outcomes in areas such as our blue economy, it makes that delivery – at best – inefficient.
Due to reserved competence over international relations and international agreements, for example, the pursuit of Scottish interests and involvement of the Scottish Government is severely restricted and dependent, in many cases, on UK Government agreement. That includes involvement in international marine forums, trade and fisheries negotiations or, during the UK’s EU membership, access to EU institutions to influence marine decision-making.
Those imbalanced constitutional arrangements have led to outcomes such as, during the UK’s EU membership, nations of Scotland’s size – and smaller, or with smaller marine sectors – having a greater ability than Scotland to attend and influence December Fisheries Council meetings at which fishing opportunities were set.
While the Scottish Government has sought to offer Scottish expertise and maximise our influence wherever possible, the reality is that our attendance and participation in the international arena is still largely subject to UK Government consent, and with the potential for that consent to be withdrawn.
In a fisheries context, that control – coupled with the UK Government’s role as the fisheries administration for England – creates a clear tension between the UK Government’s duty to negotiate on behalf of the whole UK and its responsibility for English functions and interests. That dual role and the lack of a fully impartial arbiter means that there will always be a risk of the UK Government putting England’s fishing needs first, and using Scottish interests as a negotiation ‘currency’.
That same dynamic also applies to the negotiation of free trade agreements where the lack of UK Government agreement to full scrutiny of, and engagement and participation in, trade negotiations by the devolved nations has limited the ability of the Scottish Government and Scottish Parliament to protect and promote key Scottish interests such as the recognition of Geographical Indicators (GIs) for products like Scottish Farmed Salmon in new free trade agreements.
It has also meant that the Scottish Government was denied a full role in decision-making on the UK’s free trade agreement with Australia, despite the agreement making significant changes to seafood tariffs., 
Similarly, whilst Scottish Ministers currently have executively devolved powers over marine protection in the offshore region, the Scottish Parliament does not have legislative competence over marine environmental matters in the offshore region.
Given Scotland’s expertise in marine policy, science and compliance and the fact that the offshore region comprises part of Scotland’s marine zone, there is no clear reason for Scotland to be refused powers over marine environmental protection within these waters, and yet that is the reality of the current constitutional settlement.
Even where relevant powers are fully devolved, the UK Government has been willing to intervene in these devolved areas. This includes, for example, the UK Seafood Fund – announced by former Prime Minister Boris Johnson to help the fishing industry manage the impacts of Brexit. This Fund was not only inefficient in financial and administrative terms by duplicating Scottish Government funding programmes and approaches but neither did it take account of devolved competence. It also did not reflect the full cost of Brexit to the marine sector.
Devolved competence has also been affected by the UK Government approach to post-Brexit legislation. For example, the UK Government sought to establish a UK fisheries policy through the Fisheries Act,  – a move successfully resisted by the Scottish Government. Similarly the UK Government has persistently refused to devolve control over the Seafish Levy to ensure that the Scottish seafood sector is receiving value for money and support tailored to its unique needs.
The likelihood of further UK Government action in devolved areas has also grown through the passing of the United Kingdom Internal Market Act 2020, which seeks to prevent legislative and regulatory divergence within the UK. As the Scottish Government has set out in detail, this legislation risks constraining Scottish Ministers’ ability to exercise devolved marine competence appropriately, including retaining alignment with EU standards. It could also lead to the imposition of deregulatory or otherwise damaging measures arising from current free trade agreements and the potential lowering of environmental protections.
That risk to our legal and regulatory protections is also significantly magnified by the UK Government’s approach to downgrading or revoking important aspects of EU law that were retained in domestic law after Brexit.
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