Template letter to MPs on fishing

Fishing for Leave recently conducted mass nationwide port protests where 200 vessels and thousands of public supporters demonstrated against the governments capitulation to the Transition deal which would see the UK obey all EU law AFTER Brexit.

This would allow the EU to enforce detrimental laws to cull what’s left of the British fleet and coastal communities to claim our resources we would no longer have the fleet capacity to catch using UNCLOS Article 62.2.

This betrays one of the acid tests of taking back control and spits in the face of the biggest vote in British history. Leave meant leave not trapped in transition and Fishing for Leave ask all members and supporters to lobby their MPs to make it clear that they must serve their constituents and communities not dismissive Whips who think fishing is expendable and that coastal communities don’t count!

If you want to see our fishing grounds and communities survive and boom with Brexit please take 5 minutes of your time and the pittance of a stamp and envelope to write to your MP.  https://www.parliament.uk/mps-lords-and-offices/mps/

Please send the template letter below, which is available to be downloaded as a pdf here

………………………………………………….

Dear …………………………………………………..,
Following the mass demonstration of 200 vessels and thousands of public supporters on Sunday 8th, I write to you due to my abhorrence over the Transition deal and the dire existential threat it presents to what’s left of Britain’s fishing industry and coastal communities within the 21months, along with the longer term legal implication of a potential protracted legal fight it creates.

The government  must ratify this transition as part of the withdrawal agreement and treaty with parliamentary approval. The terms of the transition subject the UK to re-obeying all EU law, including all new laws, after Brexit and the official termination of our current membership.

This negates and squanders the clean slate provided by Article 50 that states the “treaties shall cease to apply” and with that all accrued rights and obligations – including the disastrous, inept Common Fisheries Policy. This would automatically repatriate our waters and resources to national control by reverting to international law

Being trapped in the 21month Transition means the EU will be free to enforce detrimental legislation to cull what is left of the British fleet. The EU has every incentive to do to enable it to use international law under UNCLOS Article 62.2 to claim our resources we would no longer have the fleet to catch

The EU can do so using the inept EU quota system which is wholly unsuited to UK mixed fisheries and which forces fishermen to catch and then discard en-mass to find species their quota allows them to keep. As of 2019 there is to be full enforcement of the EU discard ban which addresses the discard symptom not the quota cause.

As of 2019, when a vessel exhausts its smallest quota it must cease fishing – vessels must tie up early in the year. Public body SeaFish calculates approximately 60% of UK resources will go uncaught and resultantly a similar proportion of what is left of the British fleet will go bankrupt.

Contrary to bland assurance, obeying the CFP means the EU has sole power to alter the ‘relative stability’ share outs of resources and is free to do so to the UK’s detriment. The 12mile limit which gives protection to our inshore and shell-fishermen along with nursery grounds can also abolished – it may terminate on withdrawal.

Worse, because the transition is part of a new treaty after Brexit it exposes the UK to a potential protracted legal fight over continuity of rights under Article 30 & Article 70 of the Vienna Convention on Treaties. Article 70 states the termination of a treaty does not affect any rights or obligations…unless the treaty otherwise provides, or the parties otherwise agree”.

Article 50 states & terminates current rights but the transition treaty has no such clean guillotine exit clause!

There is real danger the EU could subject the UK to a legal battle after 21 months for continuation of rights which the UK will have re-created by re-obeying all EU law in a new Transition treaty. The Transition renders all government and MP commitments, promises and assurances to reclaim British waters as worthless!

It is imperative for the survival of fishing communities in a multitude of constituencies that the capitulation of fishing being imperilled in a transition is reversed and the Prime Minister commits to all sovereignty and control over all waters and resources within the UKs EEZ reverting to Westminster at 11pm on 29th March 2019.

Failure to do so would be a tangible demonstration that there is no intention of making a serious stand on fishing or Brexit nor fulfilling “taking back control of our borders” of which fishing is an ‘acid test’ of Brexit.

I hope that as Member of Parliament your constituents can count on your full support in ensuring No Deal Is Better Than A Bad Deal & that fisheries are therefore exempted from the transition so MPs are not responsible for a second betrayal & sacrifice of Britain’s coastal communities which the public will not be forgiving of.

Yours Sincerely,     ………………………….

In Support Of Fishing for Leave

 

Brexit roundup – short-term problems; longer-term potential?

With Parliament  still in the Easter recess, things have been a bit quieter than usual on the Brexit front. However, the well-supported fishing protests last Sunday suggest that we are going to be entering a  period in which the Government will face ever-mounting pressure to try a different approach to securing some sort of workable short-term post Brexit arrangement.

The long term is not looking promising either. Given how readily Mrs May and David Davis rolled over, what is the likelihood of their resisting demands from Michel Barnier that the UK sign a “non-regression” clause in any long-term agreement, which would force the UK not to undercut EU standards on tax, health and the environment to poach investments. He has also insisted that access for EU fishing vessels must be included in any long-term deal. The “environment” issue is a red herring as many EU environmental laws owe their existence to UK influence, but why should we not determine who fishes in our waters? Why should we be denied the freedom to cut tax? The state in the UK is horrifically bloated, as in most other Western nations.  It needs to be shrunk drastically and were this to be undertaken, taxes would inevitably undercut those in many EU member states.

Going back to the transitional arrangements, a report from the House of Commons Brexit Committee has confirmed that if a “deep and special partnership” with the EU proved unsuccessful, EEA/Efta membership was an alternative that could be implemented quickly. Although the Committee is looking at EEA/Efta as a long-term solution (which it isn’t)  it would be a better alternative than the current proposals for the short term, which poses the question as to why Mrs May and her team are pursuing such a damaging alternative. Maybe they still believe that it’s worth enduring 21 months of humiliation because  there will be a marvellous deal at the end – a hope which is unlikely to be fulfilled. Barnier’s comments make it clear that he wants to deny us as much long-term freedom as possible.

A number of Commonwealth countries have been discussing a future trade relationship with the EU. The Canadian Prime Minister Justin Trudeau has said that it would be “fairly easy” to negotiate “an improved approach on trade between Canada and the UK” after Brexit. The same article claimed that India is becoming less enthusiastic, no doubt due to  the recent statement by Theresa May that she still intended to reduce annual net UK migration to less than 100,000, meaning that India’s desire for more of its citizens to come over here as part of a new trade deal is unlikely to be fulfilled. Australia is also keen to start negotiations with the UK on trade, but pointed out that  if we stayed in the EU’s customs union after Brexit, we wold become “irrelevant”.

Meanwhile, disgruntled remoaners are still seeking to over turn Brexit by demanding a second referendum.  For all her failings in other areas of Brexit, at least Mrs May is standing firm on this. “Regardless of whether they backed Leave or Remain, most people are tired of hearing the same old divisive arguments from the referendum campaign, and just want us to get on with the task of making Brexit a success. And they’re right to think that. The people of this country voted to leave the EU and, as Prime Minister, it’s my job to make that happen.” she said in a recent speech to mark one year until Brexit day.

Mrs May is most definitely right in claiming that most people have had enough of Brexit controversy. Claims that some 44% of voters want a second referendum do not tally with real-life experience.  Given that the poll was conducted by a pro-remain group, Best for Britain,  a healthy degree of scepticism is justified. Mrs May has the support of Jeremy Corbyn in opposing a second referendum and it is doubtful whether those activists on both sides of the argument who spoke in debate after debate, criss-crossing the country and having to suspend anything resembling a normal life for three months would want to go through it again.

The clamour is coming from those who wouldn’t have to do the donkey work. The latest addition to the ranks of these good-for nothings is David Miliband, who called Brexit “the humiliation of Britain.”  Well, Mrs May does seem to be trying to do this at the moment, but a decent Brexit would be the absolute opposite – a chance to stand tall as a sovereign nation once again. there’s nothing humiliating about this.  One after another, the fears stoked up by remoaners are being debunked. The UK economy has performed well since the vote and only today, Andreas Dombret, Member of the Executive Board of the Deutsche Bundesbank, stated that despite attempts to lure parts of the finance industry to Paris or Frankfurt, London would remain Europe’s financial hub after Brexit.  A mass exodus from the City was always a concern during the referendum campaign, but such fears are unfounded.

In many ways, a healthy debate on how we leave  – i.e., the relative merits of the current transitional proposal versus EEA/Efta as a holding position will take the wind out of the remoaners’ sails and would cut their media exposure in favour of more important issues. However, one cannot overstate the importance of winning this debate. Brexit must mean Brexit (to quote Mrs May). Surrendering to the EU’s demands for a transitional deal would prevent us fully achieving the separation for which we voted in June 2016. This must not happen.

Fishing protests a success – and this is only the start

Organisers Fishing for Leave welcomed the success of last Sunday’s demonstrations and thanked the hard work of members and the public for their support.

FFL says it is now important that the politicians pay heed to not only the fishermen but the thousands of people who turned out to support on the quaysides or this would just be the start.

Yet Mrs May said in Denmark that she wanted “fair and reciprocal” access to waters for the countries’ fishermen after Brexit.

Mrs May’s definition of ‘fair and reciprocal’ fishing access is probably as far away from the rest of the population as her idea of Brexit meaning Brexit. Access should only be on a needs must equal swap basis.

Sadly it seems Mrs May’s idea is the same as that of her predecessor Edward Heath. That Britain’s greatest natural resource and coastal communities are expendable negotiating capital as her capitulation to trapping Britain’s fishing in transition shows.

Theresa May needs to stop playing semantics and for once live up to her rhetoric of ‘let me be clear’ by having the decency to stop playing with real people’s lives, futures and businesses in coastal communities.

She must reverse the capitulation on fishing and categorically promise that we will be entirely free of the Common Fisheries Policy come March 2019. If not, she will consign another British industry to museum and memory as the EU culls what is left in the 21 months of the transition period.

PROTEST A HUGE EFFORT THAT’S JUST A POLITE START

All those from the industry who made the effort to turn out around the coast did a fantastic job and should be massively proud to represent and fight for their industry, communities and way of life. That is what this is all about for us. Milford Haven, Portsmouth and Hastings were all phenomenal efforts with excellent turnouts from along the coast. A “well done” must go to Weymouth for coming together at such short notice as well as Newcastle, where a “well done” is due to many North Shields fishermen who rose to the occasion on short notice.

Special mention must go to Plymouth for the sheer numbers and the artillery battery of fireworks launched and to Whitstable  where Chris and Luke’s symbolic burning of a boat was a show stopper finale that deservedly won top trumps.

To see so many younger folk at sea showed that this is an industry that has green shoots if they are given a chance to be nurtured. We’d like to convey a big thanks to all those who worked like Trojans to make this happen and the thousands of members of the public that came down to support the flotillas, ultimately our seas and fish stocks are the nation’s resource and as much theirs as anyone else’s. Some people even travelled to Plymouth from as far as Stoke-on-Trent!

These were peaceful protests conducted with black humour and high professionalism – even when Remainers chained themselves to the boat Thereason May that was about to be symbolically burnt.

However, these events weren’t a party but a full-blown protest. We’re sick to death of being malevolently and dismissively portrayed as being justifiably expendable when we are anything but. Fishing is a primary wealth generating industry providing food security and employment in ancillary industries in rural coastal areas.

Repatriating our fishing grounds and the 60% of the fish the EU catches in them is worth a potential £6-8bn every year to coastal and rural communities and can create tens of thousands of jobs.

For the remainers gleefully peddling the deliberate narrative that fishing doesn’t matter, we ask – how much is your job worth to the economy?  Something that the professional students who berated fishermen, claiming that remainers knew best about fishing in Whitstable should consider.

TRANSITION MEANS MORE BOATS WILL BE BURNT

The transition isn’t just 21 months to suck up but an existential threat and potential death sentence for what’s left of Britain’s fishing industry.

DEFRA’s  peddling the government line about “delivering a smooth and orderly Brexit” along with “safeguarding fishing communities” is laughable given obeying all EU law after Brexit means the EU is able to enforce detrimental policies to cull our fleet.

The EU has every incentive to do this as under international law, UNCLOS Article 62.2, if a nation is unable to catch all its resources it must give the surplus it can’t catch to its neighbour – the EU.

Our big fear is the ill-founded EU discard ban is to be fully enforced as of 2019. The EU’s inept quota system forces fishermen to discard half their catch to try find fish their quota lets them keep.

The ban addresses the discard symptom not the cause – quota. Vessels must stop fishing when they exhaust their smallest quota. These ‘choke species quotas’ will see the fleet tied up, boats and businesses at sea and ashore go bust.

The 12 mile limit that protects our inshore fishermen and nursery grounds can also be abolished upon withdrawal.

Despite DEFRA’s pathetic official protestations that “the UK’s share of catch could not be reduced over the transition period”, the EU commission has sole discretion to award and change resource shares and has every reason to do so  – to our detriment.

DEFRA’s statement that we will be ok because we ‘are working in good faith’ is pitiful given the EU has repeatedly said that a departing member must be seen to suffer.

We would love to know how DEFRA squares the bunkum that “by December 2020 we will be negotiating fishing opportunities as an independent coastal state” given obeying all EU law doesn’t end until 2021 with international fishing negotiations not agreed until that Autumn?

To sacrifice tens of thousands and communities to appease a few ideologically pro-EU vested interests is a second betrayal that would have dire electoral consequences for coastal MPs

Now coastal MPs must listen to the thousands who turned up at short notice and the many more members of the public who support this totemic industry or we will go up a gear or two. In other words, last Sunday will just be a polite start.

It is important that MPs in coastal constituencies remember they serve their constituents who elect them and not a dismissive chief whip. If MPs have any inkling of self-preservation they must heed what we are saying and put country before party. They must stand by and remember: “No deal is better than a bad deal” and that coastal constituencies count.

WELCOME MPs SUPPORT BUT MUST BE ACTION TO BACK WORDS

We welcome the statements of support from Owen Paterson, John Redwood, Sheryll Murray, Derek Thomas and Luke Pollard but are hugely disappointed that all the other MPs that were invited to show their support weren’t in attendance.

The politicians have now been told clearly that the transition is unacceptable – and why. It’s now time they honoured the vote and walked away from the transitional terms as it is clear the EU, in order to dissuade other countries from leaving,  is not prepared to offer a leaving member a deal worth more than a packet of smarties.

If they do not change tack and shovel fishing away in desperation for any deal, they will be guilty of a conscious second betrayal of thousands of lives, businesses and coastal communities and will be culled in those constituencies in the same way our fleet will be.

Fishermen are not going to take being thrown to the wolves lying down and these protests will just be the start if patriotism, decency and good sense do not prevail.

Fishing: the threat goes right up to the shoreline.

When the Prime Minister gave her first major speech outlining Brexit at the Conservative Party conference on 2nd. October 2016, Fishing for Leave rapidly produced an analysis,  pointing out the pitfalls within the Prime Minister’s plan.

Invoking Article 50 was fine. This would create  a clean break, with no repercussions from the other 27 Member States because they had accepted the terms in the Lisbon Treaty  and the Croatian Accession Treaty What was of great concern was the Prime Minister’s quest for a “deep and special” relationship, which like David Cameron’s red lines, would never be on offer or available, so such a policy would be chasing rainbows.

While FfL could understand the reason  for bringing all EU existing legislation into domestic Legislation, (otherwise on Brexit day there would be vast sections of UK legislation missing), we had serious concerns. This procedure was satisfactory for internal law, but it would cause problems with joint EU external legislation (Regulation) such as the Common Fishing Policy.

This concern was heightened when the Prime Minister stated that all rules and Laws would be the same the day before Brexit as after. The rules can be made to be the same, but the laws cannot be the same, simply because the UK will no longer be an EU member state, but treated as a third country, with no obligation for the EU to treat the UK as compatible.

Because of the huge mount of time wasted at the start of the Brexit process, the UK is having to  go through the process of an implementation/transition period (21 months) and  if the terms agreed with the EU are formally adopted, we face a serious risk of a legal action through the Vienna Convention on Treaties, which could tie us down to the status quo for many years.

By surrendering fishing, the Nation’s resource, for the 21 months of the transition period, instead of leaving the CFP on 29th. March 2019 and introducing a sensible scientific and environmentally sound British policy, we would be continuing with the CFP management, meaning that UKfioshermen would have to be subject to the final stages of the discard ban, which will be introduced at the start of 2019. If it is strictly enforced, by the UK Government’s own findings, 60% of the UK fleet will face bankruptcy, opening up the possibility for the EU to catch more fish in our waters in 2021,. Under International Law  UNCLOS3, Article 62 (3), because the UK would no longer have sufficient catching capacity, what we can’t catch must  have to be handed to our neighbours – in other words, the EU.

If that was not bad enough, the UK government, under the draft withdrawal agreement of 19th. March has agreed Article 125, and section 4, though paragraph 1, to allow the European Commission to propose to the Council that they can adopt measures on fixing prices, levies, aid and quantitative limitations and on fixing and allocation of fishing opportunities.  This includes the waters right up to UK beaches, as the derogation for the 6 and 12 nautical mile limit will have fallen, so the UK can say goodbye to the inshore lucrative squid fishery, and  shellfish  industry.

Our coastal communities will continue to decline, in spite of the token Government support of the Coastal  Communities Fund which, since 2012, has encouraged the economic development of coastal communities. So far £170 million has been spent and the scheme is now to be extended to 2021 with a possible further £90 million spend. That  is a pittance compared to the possible potential of over £6 billion annually our UK marine life could generate.

The only success which the UK Government can claim is leaving the 1964 London Convention, but that will  be tested July 2019, when all EU vessels should be excluded from the 12 nautical mile zone. That will be a test on whose law is superior EU or UK, as July 2019 will be during the transitional period.

There is no doubt that during the 21 month period, the UK fishing Industry, thanks entirely to UK Government policy, will be worse off than if we had stayed in the CFP . For the Prime Minister to say we will come out of the CFP in 2021, taking control of our Nation’s waters, to run our own affairs, is chasing rainbows, as the European Parliament has made it clear there will be no trade deal without EU access to UK waters. There is strong evidence to suggest that the EU was not prepared to consider any transitional agreement if we regained control of fisheries. Having capitulated once for the 21 month transition, a second capitulation – trade deal for fisheries access, is inevitable.

Without a legally watertight binding document in the next few months stating that nothing within our EEZ will be given away, the Prime Minister will not be believed.

This is not the fault of the EU, which will strive for the best deal for the benefit and unity of the remaining 27 member states. Our Government  has been told, and warned of the consequences of their actions, but it seems determined to push our maritime heritage beyond the point of recovery – to become global Britain, a land mass only. To repeat, it was the decision of our government to capitulate. The European Commission’s “notice to stakeholders“, published today (9th April) could not have been clearer, “As of the withdrawal date, the Common fisheries policy rules no longer apply to the United Kingdom…In accordance with international law of the sea, fishing vessels wishing to engage in fishing activities in waters under the sovereignty or jurisdiction of a third country are required to obtain a fishing authorisation from that third country.” This could not be clearer. The government held all the trump cards, but threw them away.

The actions of the UK Government is proving that it has a very different interpretation  of  Brexit from those who voted leave. The problems that will arise for the UK stem from  our own Government’s policy, no one else.

Fishing for Leave has constantly pointed out the pitfalls of Government Brexit policy, and one extra concern which we wish to highlight is the fate of the 12 nautical mile zone during the possible transitional period from 30 March 2019 to 1 January 2021.

One has to remember that basis on which the UK has exclusive rights in the 6 and 12 nautical mile zones  zones is a derogation, by regulation, from our EU Accession Treaty (which gave the EU rights up to our  low water mark.)

On the 29th March 2019 the EU treaties cease to apply, which in turn takes out the regulations, so at that point we are our cleanly out, with no repercussions. However, if we find ourselves subject to the CFP in all but name, there will be no derogation this time.This means that EU vessels can fish in the 12 miles around our coasts – wht out the limitation of quota. This would ruin our   shellfish and squid fisheries. Much of this catch is sold to the EU, but it now looks like EU vessels can catch and harvest it themselves.

The only saving grace, could be what Fishing for Leave tirelessly campaigned for, the removal of the 1964 London Convention, which allows foreign vessels into our 6 and 12 nautical mile zone. This should take effect on the 4th July 2019, and it will be a huge test of Government resolve, to see if they capitulate 100% and continue EU vessel access. If they do, EU vessels will be up to the beaches, and like the Kent Kirk case in January 1983, thanks to our Government’s own actions, there will be nothing we can do about it.

Michael Gove, the secretary for the Environment, Food and Rural Affairs was living in a fantasy world when he replied to Alastair Carmichael with these weasel words:-

“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.”

Both Mr Gove and the Prime Minister had previously stated categorically that we would leave the CFP on the 29th March 2019 and take back control of our Exclusive Economic Zone of 200 nautical mile/median line, but in order to secure what will be a disastrous 21 month transition to buy moew time (in other words, to cover up the fact that they didn’t have any idea about a final settlement), the Government surrendered our EEZ to the EU.

Just to remind ourselves, here are Mrs May’s words:-

We will be leaving the common fisheries policy—and, as I indicated, the CAP—on 29th March 2019. The arrangements that pertain to fisheries during that implementation period will, of course, be part of the negotiations for that implementation period. Leaving the CFP and the CAP gives us the opportunity, post-implementation period, to introduce arrangements that work for the United Kingdom. The Environment Secretary is discussing with the fishing and agriculture industries what those future arrangements should be.

Can we trust her? After recent events, no amount of words, promises, assurances, will convince coastal communities that come 2021, the people’s marine resource will back under national control. After such a volte-face, they are justified in assuming that it will be given away for a trade deal, just as it has been given away now for the 21 months transition. The EU will demand that position for a trade deal and the UK Government will capitulate, and hand it over.

Just look at Article 125  part 3 of the draft UK draft leaving document :

The Union may exceptionally invite the UK to attend, as part of the Union delegation, international consultations and negotiations referred to in paragragh  1 of this article, to the extent allowed for Member States and permitted by the specific forum.

What a degrading, humilitating position the UK Government has placed our nation in.

Finally, part 4 states:   Without prejudice to article122(1) , the relative stability keys for the allocation of fishing opportunites  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 quantative limitations and on the fixing and allocaion of fishing opportunities.

As relative stability keys can be changed, the EU can take what they like out of UK waters.

DEFRA (the Department for the Environment, Food and Rural Affairs, claims that it had reached a deal with the EU whereby the UK’s share of the catch in our waters wold not be reduced during the transitional deal, which includes keeping the 12-mile limit exclusively for UK fishermen. Whatever DEFRA might, however, as far as the 12 nautical mile zone is concerned, based on the draft Withdrawal Agreement Article 125, it is wrong.

The 6 and partial 6 to 12 nautical mile zone is protected presently by a derogation within Regulation 1380/2013. That Regulation ceases to apply to the UK when we leave the EU on 29 March 2019.

DEFRA will argue that this isn’t the case because through the European Union (Withdrawal) Bill this Regulation has been incorporated into domestic legislation.

Not just DEFRA but the UK Government as a whole is making a huge mistake in this thinking. While our rules might be identical, as we have pointed out, the legal basis is not the same, simply because we will no longer be a member state. In order for this arrangement to be acceptable with the EU, it would have to be incorporated in a treaty.

Until that happens, the wording of Article 125 relates from the base line (Low water mark) out to 200 nautical mile/median line.

Even if the EU agrees by handshake to maintain the existing arrangements, without a legal basis, EU vessels will enter our 12 nautical mile limit to take non quota species, such as squid, cuttlefish and scallops.

The only saving grace, could be the UK’s withdrawal from the London 1964 Fisheries Convention, commencing 4th July 2019, which withdrawal excludes all EU vessels from within the 12 mile zone. A determination to enforce this exclusion will be another test of the Government’s resolve. Will it stand firm, or capitulate? If it is the latter, then as with the 21 month implementation period, it will be certain capitulation over any trade deal which might come into effect at the end of 2020.

The fishing industry is not going roll over and Fishing for Leave will be organising a series of protests in ports up and down the country to highlight the plight of the industry – to be betrayed a second time by a Conservative government. Details of the location and dates of protests will be found in this article, which will updated regularly.

What angers fishermen and their supporters is that this surrender is totally unnecessary. If the government needs more time to negotiate a long-term deal, then why not go for the EEA/EFTA route as a holding position?   As far as fisheries is concerned, it would mean that we could take back control and the EU would be powerless to stop us. It could not stop us signing up to an arrangement which it has already signed with Norway, Iceland and Liechtenstein and would also mean that any negotiations on a long-term trade deal would be starting from a much better position. Having regained control of fishing, we could make it clear to the EU that sharing our resource once again, to the detriment of our national fishing industry, will not be on the table. Indeed, it could not be on the table as the electoral price would simply be too high.

Why the government is sticking so rigidly to its suicidal course remains a mystery, but yesterday’s protests are only the start. Our fishermen have their backs against the wall. They have nothing to lose. The government – and the Conservative party in general – by contrast has everything to lose.

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.