Support Fishing for Leave’s protests – details, dates and venues (will be updated regularly)

Fishing for Leave is staging mass protests with fishermen in ports nationwide against the Transition deal that will see the UK obeying all EU law including the hated Common Fisheries Policy (CFP). The demonstrations will be joined by top Tory MPs and Brexiteers.

** FOLLOWING APRIL 8th’s PROTESTS, FURTHER SUCH EVENTS ARE PLANNED AND WE WILL PROVIDE YOU WITH DETAILS AS THEY ARE SENT TO US BY FISHING FOR LEAVE **

The continuing relevance of Article 127 of the EEA Agreement

By Professor George Yarrow

Last Thursday (29th March 2018) was the last day on which the Government could have given formal notification that it wished to withdraw from the European Economic Area Agreement (EEAA) on Brexit Day (29th March 2019), in accordance with Article 127 of the Agreement.  As it has consistently indicated was its intention, the Government did not send a notice of withdrawal to the other parties to the Agreement.  This raises the immediate question: how do things stand now?

The first thing to say is that the earlier situation has been changed somewhat by what appear to be mutually agreed provisions in the draft Withdrawal Agreement for a post-Brexit transition or standstill period.  Article 124(1) of that document stipulates that: “… during the transition period, the United Kingdom shall be bound by the obligations stemming from the international agreements concluded by the Union, or by Member States acting on its behalf, or by the Union and its Member States acting jointly.” Since the EEAA is one of those international agreements, it is clearly envisaged that UK will continue to be bound by it during the transition, subject only to the consent of Iceland, Liechtenstein and Norway.  That consent can be confidently expected, the EEAA being an existing free trade agreement with the UK, a major market for Iceland and Norway.

If the draft Withdrawal Agreement, inclusive of Article 124(1), is eventually ratified, there will be no concurrent UK withdrawal from the EEA on Brexit day.  The UK will remain an EEA participant throughout the transition period and the deadline for the notification of any future withdrawal will be put back until 31st December 2019, one year ahead of the projected end of the transition.  By then the prospects for success in achieving the kind of longer-term settlement sought by the Government (whatever that might turn out to look like) will be clearer.  And at that stage the Article 127 issues will need to be faced again, albeit in different circumstances.

The ‘change in circumstances’ point is important here. It is to be recalled that the Government’s view so far has been that the EEA Agreement would automatically cease to be applicable to the UK upon withdrawal from the Treaty of Lisbon. I have argued since June 2016 that this view is wrong: there is no text in either Treaty which says as much and the view is only sustained by speculative interpolations that run counter to norms of international law.

More specifically, the Government has repeatedly asserted that the EEAA becomes automatically inapplicable on Brexit Day, either because the UK will not be a member of EFTA or because it will not be a member of the EU.  That is, it has been (wrongly) claimed that membership of one or other of these two institutions is a necessary condition for EEA participation.  The reasoning behind this view has never been aired publicly, nor has the claimed legal advice on which it is allegedly based ever been disclosed. This has, I think, been a deliberate strategy to avoid Parliamentary scrutiny, by keeping under wraps facts and reasoning that could pose problems for Conservative party management. It was likely judged that achieving majority support in Parliament for voluntary withdrawal from the EEAA would be difficult.

The contrived ‘justifications’ of automaticity are now being put to the test. Article 124(1) of the draft Withdrawal Agreement indicates that the UK and the EU have agreed that, subject to the consent of the Efta States, the EEA Agreement will be operable/applicable post Brexit, even though the UK will be a member of neither the EU, nor EFTA.  That is, the asserted ‘necessary condition’ for EEA participation is a fiction: it is simply ignored in the draft Withdrawal Agreement and, if that Agreement is ratified and implemented, what was previously claimed to be impossible will come to pass.  Given that, when the time comes to consider Article 127 issues again it is unlikely that the avoidance strategy will be sustainable.

One ironic consequence of the avoidance strategy is the current negotiation around transition arrangements that will see the UK government responding to a referendum sentiment to ‘take back control’ by ceding yet greater control over its affairs to others.  This is now rationalised by those who have contributed most to bringing it about on a ‘paradise deferred’ argument (and deferred by only 21 months), but that looks for all the world like a doubling-down on wishful thinking.

Whether the withdrawal Agreement is or is not ratified, it will remain the case that there are only two, legitimate ways for the UK to withdraw from the EEA: (a) by the giving of Article 127 notice or (b) with the unanimous consent of all the contracting parties.  Given those routes to exit, the EU or any of the other contracting parties (each acting alone and whether an EU Member State or an Efta State) can block route (b).  The UK Government will not be able to just slink away from the EEAA.

The EU can, entirely reasonably, insist that the UK honour the international treaty obligations it freely accepted when it signed and ratified the EEAA twenty-five years ago, thereby blocking route (b).  Moreover, there are at least two good, immediate reasons for it to do just that: (i) maintenance of harmonised regulation on the two sides of the Irish border and (ii) money. It may also be relevant that a ‘strategy of insistence’ (that EEAA promises/ commitments be kept) would likely be aligned with the views of majorities both in Parliament and among the UK public. It would not be a case of EU vs UK, more a case of EU + UK (people and Parliament) majority opinion vs UK minority opinion.

The obvious strategy for the UK from the beginning was therefore for it to seek first to become designated as an EFTA State for EEAA purposes, with the full treaty rights and obligations of such States.  Compared with designation as an EU Member State with obligations, but without governance rights (the position contemplated by the draft Withdrawal Agreement), this would afford greater sovereignty and simultaneously resolve what are arguably the most difficult of the Irish border problems.

In summary, notwithstanding its relatively low profile in Brexit discourse to date, Article 127 of the EEA Agreement will continue to be a highly relevant factor in the Brexit process.  It is a high value card for whichever party holds it in their hand and is willing to use it.  The significance of 29th March 2018 is that it was the day that the card shifted from the UK Government’s hand to the EU’s hand.  Thanks largely to the recalcitrant unwillingness of ‘ultra Brexiteers’ to contemplate compromises with other strands of pro-Brexit opinion and with ‘softer’ Remainers, it may also come to be seen as the day on which the bell tolled for any prospect of a ‘hard’ or ‘clean’ Brexit, not only on 29th March 2019, but also on 31st December 2020.

In contrast, the bell has not yet tolled for an EEA/EFTA Brexit. Although it is getting awfully late in the day for that to happen on 29th March 2019, its prospects for the beginning of 2021 are, if anything, brightening.

A year to go and we’re nowhere near a satisfactory Brexit

A significant milestone which most people would otherwise probably have failed to have noticed has been widely reported in the media today.

The picture above depicts how I had been imagining the mood will be in exactly a year’s time – on March 29th 2019 when the two-year Article 50 period expires and we finally leave the EU. As things stand, however, it will be Brexit in name only, so most certainly not be a cause for celebration. Ahead lies a minimum of 21 months as a vassal state, where we will continue to suffer all the frustrations of being in the EU without any representation in the EU institutions.

Looking back to that incredible morning of 24th June 2016 when the referendum result was announced, not even the worst pessimist could have predicted the complete shambles which the Government has made of the Brexit negotiations. Without any clear idea of what sort of final deal they sought and outsmarted at every turn by Michel Barnier  and his team, Theresa May and David Davis have made concession after concession to the EU and have come up with the idea of a transitional deal as a means of buying time after realising that so many areas of detail cannot be sorted out in time for a long-term deal giving us full independence to be signed off in time to be implemented a year from today.

So we are facing a situation where our bright future has been postponed. No restrictions on immigration, no freedom from the European Court of Justice, no cut in our contribution to the  EU’s coffers and the decimation of our fishing industry. This was not what we voted for in June 2016.

The big question is why so many Tory MPs, even staunch supporters of independence, are being so quiescent in the face of what is likely to be a disaster, not just for the fishing industry, but for the country as a whole  – and thus, for their party electorally. Are they, as one report suggests, mere “paper tigers”  who “may huff and may puff, but they won’t blow the Prime Minister’s house down – however far any heads of agreement deal may be from perfection”?

Thankfully, all is not lost – yet. The divorce document has to be signed off not only by the EU but by our Parliament too and the combination of a vote forced through (ironically) by remainers giving MPs the chance to reject the final deal and Mrs May’s wafer-thin majority may save the day. For one thing, the Irish border issue, in spite of reports to the contrary, is unlikely to be solved quickly in a way that will satisfy the Democratic Unionist Party, upon whose support Mrs May depends.

Secondly, the cave-in on fishing has provoked immense anger – on a scale that appears to have taken the government aback. Michael Gove was clearly uncomfortable when he faced some awkward questions in the House of Commons and given the fishing industry’s long history of campaigning, we can be sure that we have not heard the last of this issue yet.

Furthermore, it is not too late to try a different approach. The EEA/EFTA route has its friends and also its critics among Brexit supporters. Everyone, however, must agree on two points. Firstly, that it is not the ideal long-term relationship for an independent UK to have with the EU, but secondly (and in the immediate context, far more importantly), it is better as an interim arrangement in every way than the transitional terms which the EU is offering us – and is still a viable option which could be implemented with in a year. The EEA/EFTA countries are not part of the political structure of the EU, subject only to the 25per cent or so of laws relating to the internal market, not directly subject to the ECJ but to the EFTA court which can only rule on EEA-relevant matters and does not have any formal powers of enforcement. IF we took this option, we would be outside the Common Security and Defence Policy, the so-called  “Common Area of Freedom and Justice” – especially the EAW, Europol and the Eurogendarmerie. We would also be outside the Common Agricultural Policy  and critically, our fishing industry can return to domestic control. We could also restrict immigration as Liechtenstein has done.

For those who would like some more detail on this subject, this chart was produced by Anthony Scholefield during the Referendum campaign and although showing the advantages of the EEA/EFTA route compared with EU membership, if you substitute “our vassal statehood after 29th March 2019” for “remain” would still be a pretty accurate comparison.

We believe that all is not yet lost, but the lunacy of Mrs May and Mr Davis in pursuing this terrible transitional arrangement is totally baffling given something better is on offer. The electoral consequences for the Conservatives will be enormous. The sooner and more often they hear “1846” whispered in their ears* the more likely we are to see a desperately-needed change of tack.

 

  • In 1846, a crisis over the Repeal of the Corn Laws precipitated  a crisis for Robert Peel and the Tory party. The damaging split which ensued kept the Conservatives effectively out of office for 28 years. Your author is firmly convinced that the party will face a catastrophe of equal magnitude if Brexit is botched.

Peer slates Electoral Commission for ‘caving in’ to pressure from Remain lobby

THE PRESS OFFICE OF

The Lord Stoddart of Swindon (independent Labour)    

Peer slates Electoral Commission for ‘caving in’ to Remainer pressure on Vote Leave funding investigation

The independent Labour Peer, Lord Stoddart of Swindon has criticised the Electoral Commission for what he believes is their ‘cravenly caving in’ to pressure from Remainer MPs and activists over the re-investigation of Vote Leave’s funding of ‘BeLeave’ during the referendum campaign.

Lord Stoddart said: “It is my understanding that the Electoral Commission, not only approved the donation to BeLeave, at the time, but it has already subsequently looked into this issue and found nothing wrong.  I find it very disappointing that they appear to have cravenly caved-in to pressure from the Remain lobby and decided to investigate again. The Electoral Commission is supposed to be an independent body and should not be seen to be influenced by political pressure.

“It is very dangerous for our democracy for the Commission to give the impression that it takes action based on who shouts loudest in the political arena.”

 

Ends

The great Brexit fisheries betrayal – it gets worse

Michael Gove and Theresa May between them are letting down our fishing industry when there is no need for them to do so. It seems that our Prime Minister is willing to sacrifice the livelihoods of thousands of men to save her skin after finding herself outplayed by the EU.

The parallels between Mrs May and her predecessor are becoming more apparent by the day. When David Cameron headed for Brussels to re-negotiate our membership in late 2015, it does appear that he genuinely believed that he could wring concessions out of the other 27 member states and come back with a deal which would be acceptable to the majority of the electorate. However, he set off with no well-thought out model in mind of how the UK could function in a semi-detached manner from Brussels – still within the EU but somehow pursuing a different path. Unsurprisingly, he got nowhere, only gaining a few minor cosmetic concessions rightly described by Jacob Rees-Mogg as “thin gruel“. Undeterred, Cameron ploughed on, tried to avoid admitting that his renegotiations had got nowhere, lost the referendum and resigned.

For Cameron’s “renegotiation”, read Theresa May’s “deep and special” relationship. From the start, it was based on wishful thinking with no clear idea either of the details of the relationship nor – and more  importantly – of how the EU works. Optimism that a trade deal would be easy to agree because of regulatory convergence soon dissipated as Michel Barnier repeatedly spelt out the EU’s intention to preserve the single market at all costs. Mrs May may not have realised what being a “third country” meant when she took over as Prime Minister and it is conceivable that the full implications still haven’t dawned on her, but she has been told in no uncertain terms that the EU is not going to give its former member preferential treatment.

What is more, having offered us thoroughly humiliating terms for any transitional period, the EU is already starting to talk tough about a final trading arrangement. All the indications are that in the critical area of fishing, she will roll over once again.

Just to remind ourselves, both Michael Gove and Mrs May consistently stated that we would leave the Common Fisheries Policy on 29th March 2019 and take back control of our Exclusive Economic Zone. However, the transitional deal does no such thing and both the Prime Minister and Mr Gove have been put on the defensive. Even after admitting that he had tamely surrendered on fishing, Mr Gove, questioned by the Lib Dem MP Alastair Carmichael, said:-

“There is a significant prize at the end of the implementation period, and it is important that all of us in every area accept that the implementation period is a necessary step towards securing that prize. For our coastal communities, it is an opportunity to revive economically. For our marine environment, it is an opportunity to be managed sustainably. It is critical that all of us, in the interests of the whole nation, keep our eyes on that prize.”

Other awkward questions have been deflected by saying “But we want to leave the CFP – and indeed the EU;  you don’t” or words to that effect. It is a smokescreen to disguise the betrayal of our fishermen. It is a complete myth that if we can endure 21 months of EU control of fisheries, all will be wonderful at the end of transitional period.  The EU’s new discard ban means that any fishermen who has used up his quota for just one species may not fish again that year. Fishing for Leave has not hid its anger. it intends to “mobilise and show our absolute disgust and heartbreak at our own government capitulating and sacrificing Britain’s fishing grounds and coastal communities to continued EU mismanagement.” Watch this space!

Of course, there is an element of points scoring by the other political parties who are making the most of the government’s discomfort on this subject, but it would be wrong to say that MPs like the SNP’s Brendan O’Hara of Argyll and Bute was acting purely from cynical motives when he said, “I strongly advise the Prime Minister to read SNP fishing policy before she comments on it, as she has it spectacularly wrong. Will she explain to the fishing communities of Argyll and Bute why she has agreed to a deal that keeps them in the CFP without a voice? Is that not the worst possible deal that her Government could have achieved for our fishing communities?”

He is quite correct – it is the worst possible deal. What has been overlooked by many commentators on this subject is the draft exit document contains the following in Article 125 part 4: “Without prejudice to article122(1) , the relative stability keys for the allocation of fishing opportunities referred to in paragraph 1 of this article shall be maintained.”

(Paragraph 1 relates to article 43(3) TFEU : The Council, on a proposal from the Commission, shall adopt measures on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities.)

The relative stability keys are an allocation percentage per EU country by species for the sharing out of the quotas. The paragraph above makes it clear that EU can change them, allowing them to take what they like out of UK waters. In that case, it will be of little consequence whether or not the EU  insists on access to UK waters as part of a long-term trade deal. there will be no fishing industry left in our country anyway.

Yet all Mrs May can say in the face of rising cross-party anger about the sell-out of our fishing industry is, by implication, to criticise the fishermen. She said “Although I recognise that not everyone will welcome the continuation of current trading terms for another ​21 months, such an implementation period has been widely welcomed by British business because it is necessary if we are to minimise uncertainty and deliver a smooth and successful Brexit.” Who else could she be referring to when mentioning those who will not welcome 21 months of the current trading terms?  Fishermen can clearly be sacrificed to keep everyone else happy. She also dodged a question from Jeremy Corbyn when he raised the subject as one of a number of questions about the government’s change of  tack over Brexit:-

Our coastal and fishing communities were told by the Environment Secretary only this month: “The Prime Minister has been clear: Britain will leave the CFP”— common fisheries policy— “as of March 2019.” Just a few weeks later, we find out that that will not be the case”, he said. The Prime Minister replied to some of his other comments but studiously ignored the issue of fishing.  

Our friends in Fishing for Leave have many years of campaigning experiences and do not intend to roll over.  Do not be deceived by the support from the Scottish Fishermen’s Federation for this deal. This organisation represents those who have bought quota, not ordinary fishermen, who are absolutely livid.

It is possible that fishing could be the issue which provokes the crisis we have long been expecting. To repeat what we said then,   “it may require some senior heads to roll if the transitional blind alley is to be averted. it is a case of holding on to your hats.” Indeed; a Brexit which throws away what could have been a success story and sacrifices  thousands of UK jobs is no Brexit at all.

The fantasy of a “frictionless” trade agreement

Mrs May and Mr Davis’ oft repeated aspiration for ‘frictionless’ trade with the European Union (EU) via a free trade agreement (FTA) and mutual recognition of standards will in reality consign the United Kingdom to being a permanent EU vassal stateBrexit will be in name only, with “stay, pay, obey without a say” being the outcome of their mishandling the Brexit negotiations.  The transition agreement, which turns the UK into an EU vassal state thanks to completely caving in to unreasonable demands by the EU, is a forerunner of even worse things to come. The transition deal (partially agreed, although a long way from being ratified) is vastly inferior to the deal which they could have obtained, but rejected out of hand as far back as Mrs May’s Lancaster House speech 17th January 2017. We could have retained our membership of the Single Market (and wider European Economic Area, EEA) through re-joining, even temporarily, The European Free Trade Association, EFTA. This alternative, also known as the ‘Norway Option’, could have delivered practically ‘frictionless’ trade and a soft border on the isle of Ireland.

At the heart of Mrs May and Mr Davis’ highly risky, far-fetched and delusional approach to Brexit is a failure to understand the nature of the EU, the European Economic Area (EEA), EFTA’s working relationship with the EEA including the EEA Agreement, mutual recognition of standards and how world trade works.  They make the most basic mistakes and repeat factually incorrect or incomplete statements to support their contradictory desire to leave the Single Market while retaining the same level of market access through an FTA.  They appear unwilling to take cognisance of readily available facts that completely disprove their fatuous mantras.

The details of what will happen after the UK leaves the EU (and the EEA) are there for anyone to see on the EU’s dedicated website  – especially in the increasing number of “Notices to Stakeholder”s under Brexit preparedness) It makes somewhat chilling reading.  There is nothing equivalent on the Department for (not) Exiting the European Union’s website. Presumably either they haven’t done this vital work or have chosen not to share it – a truth too awful to tell?

Upon leaving the EU and the EEA we would become a ‘third’ country. We would then be subject to different requirements by the EU in order,  at best, to manage the risks (to consumers and others) of doing business with us (or any other ‘third country’ outside the Single Market or EEA) and, at worst, to erect protectionist trade barriers in favour of domestic EU enterprises.  From the EU’s perspective, they will not grant concessions to ‘third’ country suppliers outside their control which are not enjoyed by EU domestic suppliers, especially when these could increase risks or create an ‘unfair’ competitive advantage.  The EU also has to treat the UK the same as any other ‘third’ country in order to comply with World Trade Organisation (WTO) agreed requirements or principles.

The EU is developing the Single Market by harmonising standards, regulations, and enforcement or surveillance within a top down centralised legalistic and bureaucratic framework under their supervision and control. It is also a long-established declared ambition that ‘third’ countries (outside the EU, or wider European Economic Area, EEA) would adopt or follow at least some EU-style measures.  The EU’s approach (to products) is outlined in principle in COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT Enhancing the Implementation of the New Approach Directives and in more detail in the EU’s Guide to the implementation of directives based on the New Approach and the Global Approach .

For the EU, mutual recognition of standards (which differ from theirs) has limited application, since it is not their preferred choice where harmonised standards (in their widest context) exist.  In any case, there is the practical complexity and increased cost of demonstrating equivalence and compatibility, which can be far from straightforward and unacceptable to consumers and users.  To take a simple illustration, traffic lights using green on top for ‘stop’ and red underneath for ‘go’ certainly provides equivalent functionality but are far from compatible and acceptable.  Also test values from subtly different tests may mean a product is (theoretically) less safe rendering it unacceptable or requiring expensive (or impractical) re-design, which in turn may invalidate other test results and/or existing certification/approvals.  (See also the Fallacy of Easy Mutual Recognition of Standards).

The EFTA/EEA option is not perfect, but is far more favourable to the UK’s interests than the transitional deal on offer or indeed, to what will eventually emerge as Mrs May’s FTA and ‘deep and special relationship’. Norway participates in the EEA through membership of EFTA. Actually it only implements EU legislation necessary for functioning of the EEA, which at most constitutes around 25% of the total EU acquis or system of laws. More than 90% of these EEA related laws reportedly originate in global bodies, meaning the UK would need to implement them anyway for global trade, unless we leave the World Trade Organisation (WTO), et al. Also the EFTA route to EEA membership gives members outside the EU a say in EU legislation affecting the EEA, is largely free (although ‘voluntarily’ Norway does contribute to regional development funds) and is outside the jurisdiction of the European Court of Justice (ECJ). What is more, EFTA members make their own trade agreements with other countries.

Contrary to statements by M. Barnier and Mrs May about the four indivisible freedoms, EFTA/EEA membership contains the facility to control immigration. Two members of EFTA have unilaterally invoked Article 112 (the Safeguard Measures) of the EEA Agreement to restrict free movement – Liechtenstein for people and Iceland for capital. The UK could do so too if we retain membership of the EEA by re-joining EFTA.  Ironically, Articles 112 and 113 of the EEA agreement, which Mrs May rejects, are reproduced closely by the EU in their draft Withdrawal Agreement, Article 13 (Protocols NI), allowing the EU unilaterally to restrict freedom of movement (including immigration into the EU from the UK).

Continuing membership of the EEA solves the problem of maintaining a soft border in Ireland between the Irish Republic and Northern Ireland, thus avoiding a hard border between Northern Ireland and the rest of the UK (something Mrs May has ruled out, for the moment).  It also gives us full control of fishing in our Exclusive Economic Zone.  The EEA agreement (for EFTA members) can be adapted to suit their interests.  Thus the UK (within EFTA) could get a bespoke version.  So we could ‘imitate, adapt and improve’ on the existing EEA agreement to suit our needs rather than follow an insular and amateurish effort to ‘re-invent the FTA wheel in a few months’ that isn’t going anywhere.

From the beginning, the EU negotiators completely dominated the Brexit negotiations. It was inevitable then that negotiating concessions (or cave-ins) would be made by weak, dithering and clueless Mrs May and Mr Davis to strong, decisive and professional M. Barnier and his team. Comparing the EU’s draft Withdrawal Agreement with the text agreed by the UK shows just how much the increasingly uncompromising EU is getting its way.  Worse still, the EU is getting away with demands that are over and above those necessary for trade, with more already in the pipeline (such as fishing, defence, defence procurement, locking UK into EU budgets etc.).  If you thought the Transitional Deal was bad, wait until you see the final withdrawal agreement and the FTA.