The UK’s decision to leave the EU sparked frenzied debate about the UK’s environmental protections, and whether these would ‘keep pace’ with EU law making. Many feared the UK would regress on the environment, either because we wanted to (cue those who yearned for a regulatory free for all), because we could or because we would do so passively.
While the question of whether the UK would maintain high environmental standards was hotly debated, no-one predicted that the first meaningful test of its resolve would involve a tiny fish most commonly seen hanging from a puffin’s beak. The humble sandeel.
The UK and the EU signed a Trade and Cooperation Agreement (TCA), to provide guardrails on high standards, setting out arrangements to enable co-operation, level the playing field and specify environmental commitments.
The TCA was designed to be tested, so it was no surprise when its built-in arbitration process was called into action last year. Given Brexit history, it was ironic to many that this was to rule on a challenge from the EU to an environmentally progressive decision by the UK and Scottish governments.
Here’s what happened. In January 2024, governments in Holyrood and Westminster announced that, following public consultation and a call for evidence, they would close the English North Sea and all Scottish waters to sandeel fishing from March 2024. Designed to protect endangered seabirds, this was welcomed by nature groups who had campaigned for decades.
The evidence the closure was compelling. More than half the seabird species breeding on British and Irish coasts have declined over the past 20 years. This has been exacerbated by the recent ravages of bird flu. In Scotland, home to over half of the UK’s seabirds, this figure rises to 70 per cent of species in decline. Shockingly, we have lost around one in four puffins across the UK since 2000. Puffins and kittiwakes, which feed on sandeels, are threatened with global extinction and are ‘red listed’ as of highest conservation concern.
But, instead of respecting this obviously positive decision, the EU contested it. In April 2024, the bloc announced it would challenge the UK, a move condemned by international nature NGOs as “shameful”. In October 2024, the EU requested an arbitration tribunal.
The Permanent Court of Arbitration, based in the Hague, weighed up the evidence and decided whether the proposed sandeel fisheries closures were compatible with the TCA. Reams of evidence were submitted by both sides and a hearing took place in January, with conservation organisations and other interested parties also allowed to make submissions.
Of course, the court’s decision was deeply important for marine conservation, but it has also taken on much wider significance as a major test of how the TCA is applied. It also tested the new Labour government on whether it would stick by the previous government’s view that the UK should take control of its fishing waters to protect fish stocks and those whose livelihoods depend on them.
On 2 May, the court published its ruling. It was good news for the UK and seabirds. The court found that the UK and Scottish governments’ case was based on sound conservation science and evidence.
The Scottish government’s decision was upheld in full, meaning the closure of Scottish waters to the fishing of sandeels remains. The UK government’s case was also found to be sound, though the court did not wholly rule in the UK’s favour due to procedural errors.
The government in Whitehall is clear that the ruling as it stands does not mean it has to reverse the closure of English waters for sandeel fishing. It has committed to comply, although it is not yet clear what this means in practice.
As the UK and the EU reach a crucial moment in their relationship reset, environmental measures do not feature high on their list of negotiating priorities: youth mobility, a defence pact and energy security are at the top of the list. The decision on the fate of the tiny sandeel is unlikely to have a major bearing on the reset.
But the story of the sandeel should not be forgotten. Given the overwhelming public support for the UK measures to protect seabirds by restricting sandeel fishing, and the clear ruling that they are legal and fair, the UK and Scottish governments must now end any speculation and protect puffins by making the closures permanent. Now that would be a meaningful Brexit benefit.
This email first appeared in the Green Transition, a weekly newsletter on the move towards a new, green economy by New Statesman Spotlight.
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