Floundering – and not just over fishing!

Slowly but surely, the degree to which the Government and the Department for Exiting the European Union are floundering in their Brexit plans is becoming more apparent.

A week ago, Alistair Carmichael, the MP for Orkney and Shetland, finally received an answer to a written question about fishing. Here is the question and the answer:-

Question:
To ask the Secretary of State for Environment, Food and Rural Affairs, what legal identity is planned to be in place to prevent EU vessels operating inside the Orkney and Shetland 12 nautical mile zone during the proposed 21-month implementation period after EU treaties and the derogation for exclusive use of the Orkney and Shetland 12 nautical mile zone cease to apply to the UK. (140647)

Tabled on: 02 May 2018

Answer: (George Eustice🙂

The implementation period agreed between the UK and EU was endorsed by the European Council on 22nd March.

Under the agreement, current fisheries rules and enforcement arrangements will continue to apply. This includes provisions relating to access to waters within the UK’s 6-12 nautical mile zone.

Access to fish in UK waters after the implementation period will be a matter for negotiation. Access will be on our terms, under our control and for the benefit of UK fishermen.

You will notice that the answer completely fails to address the question. It says that current conditions will apply, but does not mention the legal basis. There is a good reason for this – there isn’t one!

It’s not just fisheries issues which are exposing the hole which DExEU and the Government are digging. On 23rd May, Robin Walker and Suella Braverman appeared before the Commons select Committee. You can watch the full session on Parliamentary TV. Some particular highlights   include Mr Walker’s awkwardness when questioned on customs arrangement. More importantly, there was much flannelling around the subject of the legal basis of any future treaty. Pat McFadden MP asked four times about whether Parliament will be expected to vote on the financial arrangements before a legally-binding treaty is finalised – in other words, that MPs were being expected to vote for the package “in good faith”.

The scale of the mess surrounding the negotiations is being exposed more and more by the day. A report in The Times suggests that Mrs May is seeking an extension of the transitional period until 2023. This comes a day after EU sources dismissed the government’s “backstop” plans for the Irish Border. Mrs May insisted that the proposal would be time-limited, but one Brussels source said: “It will apply for as long as there is no credible alternative. It can’t be time limited or it’s not a backstop.”

The government is going round in circles. The totally disastrous position facing our fishing industry if Mrs May persists with her current plans were laid bare over a month ago.  We remain hopeful that this will not happen because these plans are being proved more untenable by the day. It may take a crisis to bring about a change of direction, but so flawed are the current plans that the crisis may not be long in coming.

Confusion over our legal status in the transition period

During the House of Lords select committee on 1st. May 2018, the Earl of Kinnoull said to David Davis Brexit Secretary of State,  “I want to come back to what you said about the European Union not being able to agree a treaty with us while we are still members. I have been troubled and scratching my head over that”.

He is not the only one. Article 50, the mechanism which secures the UK departure from the EU as from  30th March 2019, raises two serious problems.

1) The EU treaties, and thus all its regulations will cease to apply to the UK as from 30th  March 2019.

2) The EU can’t sign a Treaty with the UK while the UK is still a Member, meaning the earliest being 30th March 2019.

Put together, these two conditions cause serious problems, because if you compare the procedure in joining the then EEC in 1972, there was an orderly procedure. First came the signing  the  treaty of membership on 22nd January 1972, and then followed the ratification process, resulting in the European Communities 1972 Act, which ensured everything was ready to commence membership on 1st January 1973.

The leaving process, by contrast, is topsy-turvy. The procedure has been reversed. Taking evidence from David Davis during the Lords’ session and the House of Commons select committee of 25th April, you can understand why the Earl of Kinnoull is scratching his head. Mr Davis appears to be contradicting himself.

Before the House of Commons, he stated that there will be several votes on the outcome of the negotiations with the first vote being what has been referred to as the “meaningful” vote: a vote on the overall treaty and agreement in both Houses.  We will do this before the European Parliament will vote on it. Here are some of the questions:-

Q1388 Chair: Will the document on the future relationship be a political declaration or a draft treaty?

Mr Davis: It will be at that stage a statement of the Council. I would not imagine we will have legal text at that point.

Q1389 Chair: What status will it have if it just a statement of the Council?

Mr Davis: Nearer to political declaration than draft treaty. It will not be in draft as a legal text at that stage.

Q1390 Chair: It is likely to be a political declaration, and a political declaration is not a treaty.

Mr Davis: No, it is not a treaty. Again, to remind you of previous evidence, Mr Chairman, when I have appeared in front of this Committee I have reminded you that the requirements of European law are that they cannot sign a treaty with us until we are a third country. That means they cannot sign a treaty, which is the only point at which a treaty becomes in any way binding, until the first days of April or the last day of March in 2019.

Q1391 Chair How can Parliament set any store by it if it is asked to vote on this whole process when the really important question of our future relationship is merely a statement of the Council in the form of a political declaration and not a draft treaty?

Mr Davis: That does not mean the Council will not view it as binding. After all, each of the agreements we have come to in December and March are seen as binding. They are not legally binding but we view them as completely politically binding. (By International Law, not EU Law)

In summary, Mr Davis told the House of Commons that there may be more than one treaty, for a start. It is impossible. We do not know what the full structure of the treaty will look like: whether security and defence will be separate from the future economic partnership. It is quite possible. Some of these things will have substantive domestic effects, so they will of course come with Acts of Parliament before the House as well.

However, he told the House of Lords that we have to have everything pretty well nailed down even legally at the beginning of the implementation period. It will not be ratified, because they cannot sign a deal with us until we are a third country, which will be shortly after formal departure from the Union, but the ratification process will also take place during that period. To achieve this, the agreement must be basically complete by October, at least in joint report-type terms, and fully legally watertight by the time we leave.

He added that signatures will not be put to the treaty until after Brexit Day because “they can only sign with a third party, as Lord Jay knows better than most, I guess. So I will aim to conclude the negotiation, if I can get to that point by then, so that they can sign and then start the ratification process. Remember that ratification will require a brand new European Parliament, which will only just be being elected at that point, and a brand new Commission, and almost certainly—for some of it at least, if not for all of it—it will be a mixed agreement, so it will go round the Parliaments of Europe. So there is quite a lot to get done in ratification terms. We absolutely have to have ratification concluded before the implementation period is over, otherwise we will be in a sort of limbo.”

We need to remember that ratification is the  action of signing or giving formal consent to a treaty, contract, or agreement, making it officially valid. That is , valid according to EU Law. An example of this took place with Denmark over Maastricht and Ireland over Lisbon, where EU law did not apply until after ratification yet International Law did – and of course, under the proposed implementation period, we would expect to be under the ECJ, so what would be the legal basis?

In summary, like Lord Kinnoull, we are all scratching our heads, because it is utter confusion. It needs some bright lawyer to pin Davis down to what is going on. I have only taken this line of investigation  because I questioned the legal right for the UK to have exclusive use of the 12 nautical mile fishing limit during the implementation period, fearing that we could run the risk of EU vessel owners, not only fishing inside that limit, but taking the UK to court, as happened in the Kent Kirk case in 1983.

What good faith?

M. Barnier, the EU’s chief negotiator, showed a chart of the draft withdrawal agreement at a press conference on 19th March 2018 . It was colour-coded, with green being used to highlight what had been agreed. What struck me on seeing the draft agreement in full, that there was over 170 articles, of which a handful had been added at a later date and denoted by an (a) suffix. It was as if the negotiators had hit a problem, or thought of something else resulting in the necessity of adding something more or less on the hoof.

Article 4a is the first of these and its wording is significant:

Article 4a

Good faith

The Parties shall, in full mutual respect and good faith, assist each other in carrying out tasks which flow from this Agreement. They shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising from this Agreement and shall refrain from any measures which could jeopardise the attainment of the objectives of this Agreement.

This Article is without prejudice to the application of Union law pursuant to this Agreement, in particular the principle of sincere cooperation.

Once this article appeared, the tenor of the standard replies to parliamentary written questions began to change. Take the example below:-

Robin Walker, Parliamentary Under-Secretary of State for Exiting the European Union in part reply to DUP Westminster leader Nigel Dodds – 27th April 2018.

In order to ensure that the UK’s interests are protected during the implementation period, a Joint Committee will be established to provide the UK with a means to raise concerns regarding new laws, which we consider might be harmful to our interests. We have also agreed that the whole Withdrawal Agreement will be subject to an article of good faith, ensuring that both sides support each other in delivering the agreement.

Note that the phrase “good faith” appeared in the reply. I am very suspicious about the proposals for the fishing industry during the proposed transitional period, especially relating to the exclusive UK use of the 6 and 12 nautical mile inshore zone. My concerns revolve around the legal authority underpinning the terms for any transitional arrangements. I remember vividly the1983 Kent Kirk case, where a Danish skipper, who was also an MEP, deliberately brought his fishing vessel inside the British 12 mile limit and started to fish. He was promptly arrested, found guilty and fined. He then took his case to the ECJ, where the verdict was overturned,.

Kirk’s behaviour came about because of a loophole which he was keen to exploit. The first derogation giving the UK the exclusive rights expired on 31st December 1982, and the replacement derogation didn’t come into force until the 27st January 1983, so in good faith, Danish vessels were not supposed to fish inside that zone, but legally there was nothing to say that they couldn’t. If it wasn’t for the weather being particularly bad during January 1983, far more Danish vessels would have fished in that zone.

EU law operates in an unusual way. The Regulations take their authority from the Treaties, and when we joined the then EEC Edward Heath signed the Accession treaty on 22nd January 1972, and thereafter Parliament ratified the treaty through the European Communities (1972) Act, which came into force afterwards – on 1st January 1973.

Now it appears everything is being done the other way round. We currently have the complication of two bills going through Parliament, the European Union (Withdrawal) Bill, followed by the Implementation and Withdrawal Bill , but as David Davis told the House of Lords select committee on 1st. May it is not known yet if there will be a single treaty or two, nor when it will be agreed and signed – perhaps during the transitional period but maybe not until later. .

So we are in a state of utter confusion. There are two particular concerns. Firstly, Article 50 of TEU only allows the EU to sign the treaty when the UK takes up third country status – in other words, ceases to be a member of the EU. Our ministers and negotiators are clinging to the crazy idea that the rules and laws will be the same before and after Brexit. While the rules might be the same, the legal basis will be different as we will not be a member of the EU so its treaties will not apply to us and the EU will not have signed any new treaty with us, which means it is hard to know what legal basis the transitional period will be governed by.

Have the negotiators woken up to this seeming legal black hole? Is this why Article 4a has been included? Unfortunately, the EU doesn’t operate on a “good faith” basis, so very little is likely to be legally watertight, which will mean that any disputes will go to the ECJ. .

Certain written parliamentary questions are waiting answers that might throw some further light on this subject, but at the moment, if the proposed 21 month-transitional agreement goes ahead, it will be on a very uncertain legal basis. It is ridiculous that Parliament is being asked to vote on this when so much is still so vague. For all the talk of “good faith”, the door will be left wide open to legal challenges, just as happened in the Kent Kirk case.

A parliamentary question, asked only this morning  (Thursday 3rd May), proves the point. The reply was vague and not convincing:-

Peter Aldous (Waveney) (Con)

As this country will be an independent coastal state managing and controlling access to our own waters with effect from 1 January 2021, is the Minister able to provide an assurance that such access for EU fishing vessels will not be part of the Brexit negotiations?

The Parliamentary Under-Secretary of State for Exiting the European Union (Mr Steve Baker)

My hon. Friend will have heard my earlier answer. We are clear that future negotiations over trade must be separate from negotiations over access to waters. There would be no precedent to link the two, and we will continue to take this position in our negotiations on the economic partnership with the  EU.

It will be interesting when a reply is given to this written question:-

Mr Alistair Carmichael (Orkney and Shetland):

 To ask the Secretary of State for Environment, Food and Rural Affairs, what legal identity is planned to be in place to prevent EU vessels operating inside the Orkney and Shetland 12 nautical mile zone during the proposed 21 month implementation period after EU treaties and the derogation for exclusive use of the Orkney and Shetland 12 nautical mile zone cease to apply to the UK.

Slowly but surely, the holes in our side’s negotiating position are being exposed. If the transitional arrangements were scrapped and we instead decided to rejoin EFTA, it would solve these legal complexities at a stroke.

A rare piece of honesty – but bad news

When you are running a very long term campaign, it is surprising where the breaks come from, no more so than this written question from Liberal Democrat Alistair Carmichael, MP for Orkney and Shetland.

Mr Alistair Carmichael: [135549] To ask the Secretary of State for Environment, Food and Rural Affairs, on what date the 1964 London Fisheries convention will cease to apply to the UK; and from that date all EU fishing vessels will be excluded from the UK’s 6 to 12 nautical miles zone.
George Eustice (Minister of State for Agriculture, Fisheries and Food): The 1964 London Fisheries Convention will cease to apply to the UK on 2 July 2019. During the implementation period, current access arrangements will continue, including access to the 6 to 12 nautical miles zone where permitted under current EU rules. After 2020, we will decide who can access our waters and on what terms. Any decisions about giving access to vessels from the EU, and other coastal states, to our waters will then be a matter for negotiation.

To give George Eustice his due, it was an honest answer although not what our fishing industry wants ot hear. There is, however, more to his answer than appears at first sight.

The UK Government gave two years notice at the beginning of July 2017 to leave the London 1964 Fisheries Convention (which gave certain EU Member States the rights to fish in our 6 to 12 nautical mile zone).

At that period of time, only 3 months into the two years period from invoking Article 50, the government thought that this slight overlap did not matter as we would be coming out of the EU, including the CFP, taking full control of the nation’s marine resource on 30 March 2019.

Because the Government, through wasting so much time, has ended up having to go cap in hand to the EU Commission for extra time, at the first demand from the EU, they surrendered their trump card – fishing. The date of so called exit is now 1st. January 2021

It is not just fishing. For 21 months, unless the government changes course, much of the running of the UK will be handed to the EU. The importance of Mr Carmichael’s question is that the answer clearly shows that the decision to surrender rests entirely with the UK Government, not with the electorate nor the opposition, nor even the EU.

The only other country to leave the EU (then EEC). has been Greenland. I remember it well. While we cannot draw too many parallels, it was noticeable then that Greenland’s negotiators took a bashing from their Brussels counterparts, but they knew their ground, stood firm, told the EEC to get their vessels out of Greenland waters and ended up with an excellent trade deal. What a contrast from our team! What an  unbelievable mess they have made. Greenland understood what control of their fishing waters meant and how important it was. Here in the UK, “control” will essential mean “EU control” as our spineless team of ministers allows Brussels to make all the running.

A storm is coming

In the fishing industry, we expect winter storms – they are part and parcel of the job, Is our government, however, aware of the looming storm of its own making?

The best news of 2017 was our Government’s success in moving the Brexit negotiations from phase one to phase two, although in reality we are only moving on to to phase one and a half, because the transition/implementation period was not on the original agenda and this is what will create the storm.

Storms expose weaknesses, and for the Government it will be its entire Brexit strategy, focussed on this supposed “deep and special relationship.” Just to remind ourselves, Mrs May first used this phrase in herLancaster House speech.”The United Kingdom would seek to secure a new, deep and special partnership with the European Union”.

But there has been nothing of any substance to give us any idea of the foundations upon which this new relationship/partnership is to be based. Is it,

  1. like the present  – in other words, almost as good a deal as if we were still a full EU member? or
  2. starting with a clean sheet of paper?

It is fair to say that, given all the hype over this phrase, that the electorate thinks it is going to be the first of these options whereas the truth is that it is more like the second. When the penny drops, there will be immense disappointment and indeed, anger.

So the storm clouds are building over continental Europe, ready to lash the British Isles. We can expect them to arrive around the end of this month – January 2018. At the eye of the storm is the harsh reality that the unity and solidarity of the 27 EU member States comes first. In order that this will not be compromised, the EU’s proposal for a 21 month transition period will see us totally subservient to our continental cousins. No wonder Barnier was delighted when the UK asked for a transitional period. It suits the EU very nicely.

The EU will spare no effort in its battle to save “Le project” which, it must be emphasized, is primarily a political not an economic project. We have been told that as far as access to the Single Market is concerned, there is to be no cherry picking by the UK, yet this is exactly what the EU itself is doing in areas such as defense and security.

The recommendations being issued by the EU institutions for the operation of this proposed 21 month transition are horrific. We will have no representation in the EU institutions, but will have to accept the full EU acquis during this period. We will be back under the Common Fisheries Policy for another 21 months and charged a hefty bill for these “privileges”. Furthermore, who can guarantee that a new trading arrangement will be signed and sealed by the end of the 21 months? The EU has indicated that it is willing to consider an extension to the transitional period in which case, we may never leave in reality, only in name.

It is easy to be cynical about this transitional period. After all, why did we vote to leave? Brexit is about control coming back to our elected representatives, not further subservience to the EU.

Some Westminster MP’s are beginning to grasp that we could end up wasting 21 months under these arrangements and on 1st. January 2021 we could be no further forward – in fact, we would be heavily weakened as these 21 months would give EU companies time to find alternative suppliers within the 27. Other MPs are hiding behind this phrase “deep and special relationship” – as if Brexit is nothing to do with them, The bottom line, however, is that responsibility rests with every MP. There is no mandate to give our country away again, even under the guise of a “transitional arrangement”. Thankfully the plans will be put to the vote, so we will know where each MP stands and how many of them are truly committed to honouring the Prime Minister’s pledge that “Brexit must mean Brexit”.

It’s hard to believe our government is putting us in such a vulnerable position

John Ashworth of Fishing for Leave, who has campaigned tirelessly to Save Britain’s Fish from the EU says; It’s hard to believe that our own Parliament is going to place us in such a vulnerable, dangerous position with a transition. He writes:-.

Ever since Michel Barnier was appointed to lead the Brexit negotiations for the EU he has been clear and precise. Unfortunately, neither the UK Government nor the mainstream media have taken the slightest notice in what he is saying.

In his press statement of 20th December 2017, Barnier laid out the procedure the EU wants the negotiations to follow as everyone moves on to so-called “Phase 2”:-

  • By October 2018 a withdrawal agreement and a new treaty to cover only the transitional period should be in place, in order for time to get these through the various bodies by the end of the Article 50 process on 29th March 2019 when the UK leaves regardless.
  • The Article 50 of TEU allows the negotiation of the withdrawal agreement, which must be completed on time or else there will be no agreement, whether including a transition period or not.
  • The new treaty to be agreed will come into force on 30th March 2019, and I suspect it will be the reverse of an Accession treaty, with transitional derogations.
  • This is where it gets a little complicated. At 23:01 of 29th March 2019 the UK will have left the EU and will have become a “third country”. Apart from Barnier’s talk of a treaty, no one has provided any other detail, so we have to make a guess as to what will happen next.
  • You can’t leave the EU, take up third country status, and then carry on as if nothing had happened until 1st January 2021.
  • So the new Treaty which will cover the withdrawal agreement will come in to force in tandem with the EU (Withdrawal) Bill. Together, these two pieces of legislation would, I suspect, enable us to carry on trading, as we do at present, although it will be only for a fixed period covered by a time-limited transitional derogation.
  • On 1st January 2021, the derogation will cease, and either a new EU/UK trade agreement treaty will be created, or added to the new treaty otherwise it is possible the UK will be in the same position as we are under Article 50 with the transition coming to an end and no future agreement in place.

The transition period means we will be no further forward than now but will have left the EU and in effect re-acceded to obeying all EU law under our own steam.

This means Parliament will have taken back control only to give total control of all the UK’s affairs from 30th March 2019 to 1st January  2021 back to the EU even though we have officially left.

Meanwhile, the UK government will bang on about a “deep and special relationship” and the wonderful trade deal we will get, yet at the same time, the European Commission and Parliament have both made it very clear that we will be treated like any other third country while at the same time we would be trapped as a vassal state.

It is hard to believe that our own Parliament is going to place us in such a vulnerable dangerous position.

What are the electorate going to say and do when they find the UK trapped in obedience to EU law, locked out the rest of the world as we have agreed to do so?

With the EU able to claim ‘continuity of rights established’ as the UK undid the clean slate of Article 50 by agreeing to continue obeying EU law after leaving? This is not what the British people voted leave for an anything but Brexit.

The government cannot even get their terminology correct. “Transitional” is the word the EEC/EU has used since our 1972 Accession Treaty, so why is the government using entirely different terminology by talking about an “implementation” period?

Both the Prime Minister and David Davis claim that the plan for a transitional (or implementation) period was first mentioned in the Lancaster House speech of 17th January 2017. Michel Barnier, however, claims it was first raised in the Florence speech and this appears correct.

Mrs May said in Florence; “As I said in my speech at Lancaster House a period of implementation would be in our mutual interest. That is why I am proposing that there should be such a period after the UK leaves the EU”

But what she said in the Lancaster speech was; “I do not mean that we will seek some form of unlimited transitional status, in which we find ourselves stuck forever in some kind of permanent political purgatory”

Here, Mrs  May uses ”transitional” the commonly used word of the EU since 1972 for such a situation, so why switch to “implementation” if there is not a difference of meaning?  No one seems to have offered us any real answer.

In the House of Lords Select Committee session of 13th December 2017 asked what the difference was between transition and implementation but was not given an answer – what is the government missing or trying to hide?

In the Florence speech, she continued; “we believe a phased process of implementation, in which both Britain and the EU institutions and member states prepare for the new arrangements that will exist between us will be in our mutual self-interest.”

This all sounds very confusing, but I believe the key to Mrs May’s thinking remains the words in her Lancaster House speech: “I want us to have reached an agreement about our future partnership by the time the two-year Article 50 process has concluded

I take this to mean that she wanted an agreement concerning a long-term future arrangement concluded by Brexit day, which will be 29th March 2019. She did not mean that only a withdrawal agreement would be in place by that date, with a trade deal to be discussed during a transition.

She continued; “From that point onwards, we believe a phased process of implementation, in which both Britain and the EU institutions and member states prepare for the new arrangements that will exist between us will be in our mutual self-interest”.

“For each issue, the time we need to phase-in the new arrangements may differ. Some might be introduced very quickly, some might take longer.”

Her original objectives seems to be the very opposite of the direction in which we are now heading. Caused by so much time being wasted as the government deluded itself that adopting all EU law onto the UK statute book alone would be enough rather than cracking on with new UK policy to allow the UK to be entirely independent at the end of Article 50.

Instead of applying for an extension to Article 50 of TEU the Government has chosen formally to leave the EU at 23.00 hours on 29th March 2019 but then hand over our governance back to the EU, with no representation, and accepting all the institutions of the EU.

This is a situation far worse than anything we suffered during our 44 years of membership and all for the hope of a trade deal which still may not be ready to be signed in time.

The worst feature of this proposal is that during those 21 months the EU has been clear that the UK would have to accept any new EU legislation that comes into force during those 21 months.

Commission 830 – Final ANNEX 1 to the Recommendation for a Council Decision

  1. Any transitional arrangements provided for in the Withdrawal Agreement should cover the whole of the Union Acquis…. the Union Acquis should apply to and in the United Kingdom as if it were a Member State. Any changes to the acquis should automatically apply to and in the United Kingdom during the transition period.

Donald Tusk – Phase 1 talks – 8th Dec. ‘17
“As you know the UK has asked for a transition of about 2 years while remaining part of the single market and customs union…during this period the UK will respect the whole of EU law including new law”.          

However, David Davis was very evasive when questioned about this during the select committee session of 25th October 2017:

Question 89 – Mr Djanogly: During that period, will the UK have to accept new EU laws made during that period?

Answer – Mr Davis: One of the practical points of this, which anybody who has dealt with the European Union knows—as you will have done, I guess—is that it takes two to five years from inception to outcome for laws to make it through the process. Anything that would have any impact during those two years we are talking about will already have been agreed with us in advance.  Anything that happens during it will be something for subsequent discussion as to whether we propose to follow it or not.  That is where the international arbitration procedure might become important.

Mr Davis thinks we will have some choice, However, M. Barnier, made it very clear in his speech of 20th December 2017 there will be no cherry picking; we will have to accept EVERYTHING during transition period, including legislation currently in the pipeline.

This is a rather complex and technical subject, but I hope I have been able to convey just how dangerous this “transitional period” is.  Our fishing industry would still be stuck with the disastrous Common Fisheries Policy (CFP) but worse, as the EU could move the goalposts to it’s own advantage to cripple what it left of Britain’s fishing fleet and coastal communities.

If the EU can clear the UK fleet from the seas it can then invoke Article 62.2 of UNCLOS which says;
Where the coastal State does not have the capacity to harvest the entire allowable catch, it shall ….give other States access to the surplus of the allowable catch.

If the government signs up to a transition it would not really be Brexit in anything other than name only as the UK would become a vassal state.