Fisheries part 7- Historic rights

Thanks to our membership of the European Union, there are now no “British waters”. Whereas independent countries have control of an area which stretches out 200 nautical miles from the low water shore line (or to the median point when the distance between two countries is less than 400 nautical miles), from 1973 onwards, we surrendered the right to have any national waters at all, so the waters round our coast are EU waters and will be so until we regain our independence.

Supporters of the Common Fisheries Policy make the point that fish know no boundaries, so any stock that moves across a boundary belongs to both sides. They therefore imply that the UK should remain within the CFP and not reinstate national control, or at least run a parallel system. This is a very devious argument as no one in the Faroe Islands, Iceland or Norway – whose waters all border what are currently EU waters – ever suggests that they should somehow surrender control of their waters because of fish migration. Independent sovereign nations tackle issues relating to straddling stocks using agreed international law.

CFP supporters also raise the subject of historic rights. These historic rights pre-date our membership of the EEC/EU, and are sub-divided into rights within the 6 to 12 nautical mile zone and the 12 to 200 nautical mile/median line zone. The first agreement on these rights, which covers the 6 to 12 mile zone, was the 1964 London Convention which gave France 15, West Germany 6, Belgium 5, Holland 3 and Ireland 2 geographical areas within the UK 6 to 12 nautical mile limit where they could fish. In return, the UK obtained similar rights to fish in two Irish, one French, one West German and one Dutch area within the 6-12 nautical mile zones belonging to these countries.

This was not a fair deal and even at the time, there was much debate as to whether France really qualified for such rights. In theory, the agreement was an attempt to secure a legal arrangement for fishing vessels who had regularly fished in a particular area between 1st January, 1953 and 31st December 1962. In practise, other forces were at work.

The London Convention needs to be understood in the context of the UK’s attempts to join the EEC, as it then was. Our first application was made as far back as 1961. France’s General de Gaulle vetoed this application in 1963 and was to do so again in 1967. While it cannot be proven, it is quite possible that even in the 1960s, our politicians were prepared to surrender a resource that belongs to the people of these islands as a sweetener to EU membership. This does seem the most plausible explanation for French fishermen being given such extensive access to our waters with little or nothing being given in return.

The net result of these arrangements was that small fishermen – and therefore smaller coastal communities – were particularly disadvantaged, since they tend to fish closer to the coast than larger vessels. Thanks to the desire of the Government for us to join the EU, they suddenly found themselves in competition with larger vessels from other countries without even having been consulted.

Under Article 15 of the Convention the agreement can be denounced by any contracting party after 20 years after coming into force, which did not happen until 1966. By 1986, we had joined the EEC, so this did not matter. EEC Regulations had superseded the Convention. If we were remaining within the EU (and thus within the CFP), it would still not be an issue, but with independence looming, this Article will acquire considerable importance.  Article 3 of the Convention is also important as if granted rights to specific fishing vessels operating at that time.

The reason for these articles being so important is that once we leave the EU, this CFP Regulation ceases to apply and earlier legislation, including the 1964 Convention, will regain its force. However, there is no legal obligation for Parliament to uphold these rights, In particular, given that the Convention took place over 50 years ago and unlike the current CFP legislation is vessel-specific, it is well-nigh impossible that any fishing boats covered by the legislation will still be in commercial use when we leave the EU.

The current CFP Regulation includes the derogation which the UK has had to renew every 10 years which restricts access by foreign vessels to the waters up to 12 nautical miles from the coast, although we have had to grant access to vessels from other member states that have acquired historical fishing rights in areas between six and twelve nautical miles from the UK coast. These historical rights are, in fact, those granted by the 1964 Convention and which, as was noted, unfairly favours France. Indeed, it does not make provision for any fishing in our waters by boats from countries which are now EU member states but which were not included in the 1964 agreement.

For this reason alone, Parliament needs to exercise its right to terminate the 1964 agreement as well as repealing the CFP legislation. We obviously will need to allow a limited degree of access for EU vessels into our waters upon independence, but the existing historic rights agreements are not suitable, especially as they are vessel-specific. Supporters of the CFP are therefore attempting to muddy the waters and in the process hindering the development of  a fisheries policy which would work in the UK’s best interests.

Fisheries Part 6 – an exemption to the repatriation of the acquis

Fisheries Part 5:- Brexit must mean Brexit

I hate to be sounding a negative note after the euphoria of the recent Conservative Party conference, but having seen and spoken to so many people in Birmingham, from Ministers and MPs to ordinary party members and lobbyists, I got a pretty good feel as to what is developing and as far as fisheries is concerned, it could end up being a sell-out.

The party is currently on a massive high. It believes that it will be in power for years to come, but if it does not deliver a good Brexit, it could be heading for serious trouble in the not too distant future.

Mrs May stated her intention to invoke Article 50 will be invoked by the end of March 2017. The objective is that we will have left the EU before both the next European Parliamentary elections and the next UK general election. This sounds fine, but even at very senior levels, there is still considerable ignorance about the implications of Section 3 of Article 50, that the Treaties shall cease to apply the moment we finally leave.

The next Queen’s speech, which is usually delivered in May, will lay out the intention to repeal the European Communities 1972 Act, the Act which allows all EU legislation to pass into UK law, This repeal act is expected to be passed before the two year Article 50 period is up.

So far so good. This is part and parcel of Mrs May’s insistence that the UK will again be a sovereign and independent country. The problematical part is how the government proposes to address the problem of filling the holes that result from EU legislation no longer having any force because the treaties no longer apply. What about, for example, the standards for bathing water in UK beaches, which have been determined by the EU?  What of other environmental legislation which originated with the EU?

The simplest and safest models to follow are countries like Ireland and India. When Ireland beacme independent in 1922, it incorporated all existing British law into Irish law and unpicked those acts which did not suit Ireland’s interests once things had settled down. India adopted a similar policy in 1947.  Mrs May has hinted that the UK government intends to follow the same route – in other words, to incorporate the full acquis communautaire (all EU legislation), into UK law and then review everything at a later date, discarding those laws which are not in the national interest.

However, there is no reason why some exceptions should not be made and fisheries is one such area. If all EU fisheries legislation was just incorprated lock, stock and barrel into UK law, it would not only be an opportunity wasted but would create serious and totally unnecessary problems.

The Common Fisheries Policy is well known to have been a disaster both for our fishermen and for the marine environment. The beauty of Article 50 is that at the end of the two year period the Treaties and regulations cease to apply. As the CFP has relied on regulations, this means that without having to do anything at all, control of our 200 mile/median point reverts to the UK government.

Unfortunately, it appears that the government is planning to include the CFP in the overall incorporation of the acquis communautire into UK law, which means that we would continue with the CFP in all but name. This means that Parliament will continue to give our resource away and worse still, it is sending out a signal that we endorse the CFP.

By the time we have reached the proivisonal exit date, the present 10-year management derogation under which we presently operate would have been up for review if we were still in the EU, as it is due to expire at the end of 2022. If we agree to continue with what is something like the CFP, we will therefore find ourselves stuck on April Fool’s Day 2019 facing a complex set of negotiations just to determine how much access our fishermen may have to something which is theirs by right.

Under international law, the waters round the UK are as much part of our country as the Yorkshire Dales or the South Downs. Considering the tough words we heard about restricting access to our country for EU citizens, it is therefore crazy not to take the chance of restricting access to our waters by EU fishing vessels. It will be a tough balancing act if the Government is to secure sufficient access to the Single Market without having to agree to freedom of movement for EU citizens. It can be done, as Liechtenstein has shown, but even so, the repatriation of fisheries to natonal control  is far more straightforward. Do absolutely nothing during the two-year Article 50 period and the moment we leave,  the regulations cease to apply. Job done.

Unfortunately, unless we continue to lobby hard, I can envisage the UK agreeing to a fisheries policy  running in parallel with the CFP. The possibility of turning British fisheries round and introducing a sensible and sustainable model, based on days at sea rather than the flawed quota system, may well be wasted, along with it the opportunity to revitalise our coastal communities. Sadly, at conference, the only person I met who fully understood the situation as I have described it was the Scottish Conservative MEP Ian Duncan.

Unless the Conservative Party gives a clear commitment to ensuring that at the same time as the acquis is transferred to UK law, the relevant parts of UK legislation that gives the quota share-out and historic rights to the EU, is repealed, then it could result in the termination of our industry. Two generations will have gone due the the blight of the CFP and very few young people are coming into the Industry. This is our last chance to rebuild the industry. Sadly, it  became very clear as conference progressed that one has any confidence that the Conservative hierarchy has the will to take back real control of our 200 nautical mile/median line zone. The emphasis sadly seems to be on looking after our European neighbours rather than making Brexit mean Brexit.

What has changed since 1972? Just like Peter Walker, who refused to fight tough in 1982 when the first derogation was up for renewal because it might upset “our friends and partners in Western Europe“, the emphasis sadly still seems to be on looking after the interests of our European neighbours rather than making Brexit mean Brexit. Mrs May has insisted that the UK will not be a “supplicant” to Brussels  and “will negotiate from a position of strength”, but here is a case where the mechanics of the EU have dealt us a strong hand and her ministers seem intent on throwing it away.

This may seem a very downbeat assessment, but it is better that everyone is aware of the problem at this stage so that we can organise a campaign before Article 50 is invoked. As Sir Robert Worcester, the founder of Mori, pointed out at a fringe meeting, one person in a hundred switching sides during a General Election can change the result. Over 17 million people voted to leave the EU. When they realise that unless the Government give a clear commitment on fisheries, Brexit does not mean Brexit, the current euphoria in the Conservative Party could rapidly come to an end.

Restore Britains Fish

It is vital that the opportunities Brexit offers for our fisheries are exploited to the full. In my last piece, I pointed out that we should avoid any attempt to create a shadow Common Fisheries Policy. With the treaties no longer applying once the Article 50 negotiations are concluded, the Regulations which govern EU fishing policy will therefore cease to apply as well. This means that fisheries reverts to national control. In other words, the other EU countries will have no quota whatsoever unless we offer it to them.

In this article, I want to address another important issue. It is vital that we adopt the best practises from those countries who control their own fishing. Professor Philip Booth of the Institute or Economic Affairs recently produced a paper advocating the Icelandic model of fisheries management. I would strongly advise against such a policy. There is a much better model for us to emulate which is closer to home – the Faroese. Advocates of the Icelandic model, like Professor Booth fail understand the complexities of a mixed fishery in the relatively shallow water around the UK. Our fisheries are unique. Iceland’s waters do not contain as many different species as ours. Only the waters around the Faroe Islands, which share the effect of the Gulf Stream with us, are compatible.

Another reason for avoiding the Icelandic Model is that, like the EU’s Common Fisheries Policy, it operates a quota system of weight per species per vessel. Norway is similar. By contrast, the Faroese system determines allocation by the number of days at sea. This is a much better system for a number of reasons which I will set out below.

1). The problem of discarding marketable species.

Discarding, whether at sea or to landfill, is immoral. However, with the Icelandic system, unless you can give every vessel a proportion of quota for every species, which is impossible, there will be discarding in one form or another. Even if you could come up with a complete quota system for every vessel and every species, inevitably one quota will run out before others. Of course, officialdom will try to devise ever more complicated ways to prevent discarding, but it is like a dog chasing its tail. It is unworkable.

By contrast, with the Faroese system, there is nothing to discard apart from a few undersized fish. Everything is sold and marketed

2) The effects on Fishermen’s attitudes.

In Iceland as much as the EU, whatever the authorities do to stop discarding, it is impossible in a quota-based system, even though it can appear solved on paper. In a mixed fishery, there is no way to avoid hauling up the wrong species for which a vessel may have no quota or have used it up. What do you do ? There are three choices, all unsatisfactory.

i) Keep them and sell them illegally.

ii) open the cod-end and let them go dead and dying back into the sea.

iii) Land them and incur a cost

A quota system puts pressure on fishermen to cheat if they are to survive.

Under the Faroese “Days at sea” system, everything you catch can be landed to be sold without fear of prosecution.

3) The need to report the catch

Fishermen play a key part in building up scientific data. They are required to report how many of each species they catch and where they were fishing when they caught them.

The quota system, which encourages cheating and discards, will inevitably result in falsified scientific data. After all, if you end up catching species for which you have no quota, it is human nature only to record to fish which you are entitled to catch. Likewise, if you catch a species that you have quota for, but caught them in an area you are not allowed. you will steam to the area where you are allowed and say you caught them there, which screws up scientific data.

Faroese fishermen, by contrast, have no fear of criminalisation. They have no reason to be dishonest and therefore record true data.

4) Fishing effort.

As was noted under 1) above, with a quota system, a given vessel will inevitably use up its quota for one species quicker than for others. In a mixed fishery, this means that when your quota for one or more species has been used up, a percentage of your catch cannot be sold – at least legally. This means lower profitability and more fishing time, along with increased pressure on fishing grounds.

A “days at sea” system means that you can fish without looking over your shoulder. There is one downside. The limit on the amount of time spent at sea means that fishing off the harbour entrance needs to be discouraged. However, with this caveat, the “days at sea” system is much more efficient as overall actual fishing time is reduced compared with the quota system.

5) Relationships between fishermen, scientists and fishery officers.

A quota system results in constant battles and lack of trust. Co-operations between the different groups is minimal as everyone is trying to outwit everyone else. By contrast, all three groups can work in harmony under a “days at sea” system.

6) Individual fishermen’s ability.

If fishermen are given a set allocation of weight per species, it gives little incentive to be innovative, progressive, or to improve. The “days at sea” system gives far more scope for fishermen to excel, benefitting from their own endeavours and maximising profit.

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Given the overwhelmingly advantages of the “days at sea” system, let us now have a closer look at how the Faroese make it work.

  • The harvesting licence is an operating licence issued to an individual vessel. The fishing licence specifies the details of fishing activities (catch and geographical area limitations) in which the vessel is permitted to participate, as well as gear requirements, requirements for reporting of catch data and information on landings or transshipments.
  • All vessels larger than 15 GT must maintain a daily log of their activities in an authorised catch logbook which is issued for this purpose, recording data for each set or haul and they must also have functioning satellite vessel monitoring systems (VMS) in both national and international waters.
  • We are constantly being told that because of straddling stocks, an independent UK must run a parallel system to the EU, The tiny Faroe Islands, however, has no problem in deciding what is best for its own fishermen and those who are allowed to fish in its waters. Faroese fisheries in other zones and in international waters have long been an important part of total Faroese fisheries catches, both in terms of total tonnage and economic value.
  • Faroese fishermen have a long tradition of fishing in foreign and international waters. The Faroe Islands have reciprocal fisheries agreements with neighbouring countries in the North Atlantic region – the European Union, Iceland, Norway, Russia and Greenland. These involve the exchange of fishing opportunities, including offering foreign vessels quotas and access to the Faroes’ zone in exchange for equal fishing opportunities for the Faroese fleet in their zones. These agreements provide Faroese fishing vessels with the scope and flexibility they need.
  • A number of fish stocks of great importance for the Faroese fishing fleet can therefore be fished both in the Faroese fisheries zone and in the zones of other countries and international waters. Managing and conserving these fish stocks is therefore a shared responsibility requiring close international cooperation between all relevant nations in the region.

The Faroe Islands have no resources other than the marine resources, yet they, a tiny nation of only 50,000 people, have been brave enough to introduce one of the most successful fisheries management systems currently in operation. Will we have the courage to break out of the quota mindset and follow their example?

Fisheries Part 3 – There must be no attempt to create a Mark 2 CFP on independence

Many of my fisheries articles have looked back at previous events, but if HMG produces the correct policy, we can finally start to look forward.

In the last article, we pointed out how the Treaties shall cease to apply, taking the Regulations with them. Regulation 170/83 started the EU quota, based on tonnage per species, including the distribution keys to the various Member States, known as relative stability. This cancerous Regulation has now been superseded by another equally dreadful one – Regulation 1380./2013.

The EU’s quota system, like the CFP as a whole, was nothing more than a political tool designed to speed up the drive towards integration. Given that it is widely acknowledged to have been an environmental and economic disaster, it may seem incredible that, with the prospect of an escape from this project now on the horizon, some people are lobbying for the UK to create a sort of Mark 2 CFP on independence, allowing EU vessels the same or slightly less access to British waters as present. Such an outcome would not be Brexit and would continue to be an environmental disaster.

Any sort of shadow CFP must be opposed because the quota system is so unworkable. It has ended up criminalising all EU fishermen, as they have all had to cheat in order to survive. The cheating goes back a long way. It began with falsifying records of how much of which species were caught and where.

Misreporting the species of fish which were being caught and the area in which a given boat was fishing resulted in wrong scientific data and an inaccurate basis on which to determine future quota.

Then there are the unauthorised, so called “black fish” landings. If fishermen have exceeded their quota, they either have to land fish surreptitiously or throw them back in the sea. The authorities have long recognised there is a problem with the CFP, but their attempts to close the loopholes by tightening regulation has only made matters worse. The latest controversy has been the introduction of an unworkable discard ban which, in practise, has not stopped the destruction of thousands of tons of marketable fish. No one knows exactly how much is still being discarded.

It is possible to design gear to separate species, although not to the level necessary fully to prevent discarding. At least this gear does ensure that what is deliberately allowed to escape survives. However, the discard regulations are so complex that not even the fisheries officers are fully conversant with how the rules apply in different areas.

When you are given a quota by weight per species, you end up destroying other species in the process of trying to catch those final few fish, while at the same time prolonging fishing time. For the unique mixed fishing environment found in UK waters, home to approximately 30 different species of fish, you could not have devised a more destructive method of managing fisheries than the discard regulations included in the CFP.

I was the first person to highlight discarding, back in 1988, when I used to write a fortnightly column in the fishing press. Now, 28 years on, we now have a discard ban which looks good on paper, but it is still happening out at sea thanks to the unworkable EU system of quota. I made the discard calculations then on the basis of what I had seen myself when working on board a number of trawlers. Unfortunately, the EU’s current discard rules were written by people who are committed to pursuing an integrationist agenda and who have never been out at sea or understood the difficulties which fishermen are facing.

Of course, an independent UK will need some sort of fisheries management system and we will look at this in more detail in part 4, but it would be crazy to copy a system which is rotten in the core – one that never has, and never will, work in our mixed fishery. Unfortunately, pressure is being applied to do just this – to roll over and give the British people’s resource away again. There are far too many people talking about just negotiating a share of our own resource – in other words, allowing a sort of CFP to continue with the rest of the resource being shared out among the present EU members. To start discussions on that basis is capitulation.

Why is anyone supporting anything even remotely resembling the CFP? Simply because some within the Industry want to keep the status quo in the aftermath of Brexit in order to protect their interests. They have invested millions of pounds in purchasing quota, turning quota into a saleable commodity, for which, if the CFP were to be scrapped, they would have no legal entitlement. With a certain bank having invested heavily in purchasing quota, it and other beneficiaries are creating a great deal of pressure for the UK to create a sort of Mark 2 CFP on independence, allowing EU vessels the same or slightly less access to British waters as present.

Let us be clear on this:- such pressures must be resisted and a policy of procrastination is perfectly sufficient.  Our negotiators need only sit the two years out, do absolutely nothing and wait. As proven by the Kent Kirk case, which we considered in the previous article, if there is no agreement by the end of the two-year period stipulated under Article 50, fisheries reverts to national control. In other words, it becomes our national resource and the other EU countries will have no quota whatsoever unless we offer it to them. Once our negotiators appreciate how strong a hand this deals us, it will be the EU that will be desperate to negotiate with us, not the other way round.

In a future article, I will list the tonnage and value of the catch which EU vessels currently take out of British waters without giving us anything in return. I will also show how much of this freebie we provide them is then sold back to us. The figures will come as something of a shock.

It is ironic that one of the objectives of the EU project was to create a sense of unity among the peoples of European. The CFP has had the opposite effect, causing resentment and nationalism. It would be great to get back to the earlier situation when fishermen were seaman first and foremost, and nationality didn’t matter, but then to understand this camaraderie, you have to have spent time out there at sea, something most EU officials would never dream of doing.

Fisheries part 2 – the legal position

Once Article 50 is invoked, unless there is a mutually-agreed extension to the negotiation process, the treaties will cease to apply after the stipulated two year period whether or not an agreement has been reached. We will no longer be members of the EU, and thus no longer bound by EU Treaties and Regulations. Legislation on our statute books which began life as EU Directives will still apply because they have become part of our domestic legislation, although we will have the freedom to amend or repeal them.

Whatever exit agreement Mrs May seeks with the EU, it is in everyone’s interest to work for an amicable settlement, as is becoming apparent. However, if the other 27 members start being awkward for whatever reason, it will make no difference as far as Article 50 is concerned:- we will be out after two years.

It is useful that in fisheries we have already experienced two occasions when a termination date for an agreement was reached, as will also be the case at the end of the article 50 process. The second example shows very clearly that the Commission learnt from the first, even though the two incidents are 30 years apart. They show very clearly what will happen, particularly without any agreement.

The background to the first incident goes back to our Accession Treaty to join the then EEC in 1972. Within that Treaty was a 10-year transitional derogation, which terminated on 31st December 1982, exempting the UK from the equal access principle which handed the competency of all UK waters to Brussels. In other words, while the derogation was in force, the 6 nautical mile and partial 6 to 12 mile limits were reserved for exclusive use by the British.

A further transitional derogation, Regulation 170/83, was agreed and should have come into effect on 1st. January 1983 to replace its predecessor. However, it did not become operational until 25th. January 1983, leaving a 24-day gap.

Kent Kirk, a Danish fishing captain who was also an MEP, decided to test the legal position during those 24 days. He took his Danish-registered fishing vessel inside the British 12-mile and started to use his fishing gear. He was promptly arrested, escorted into North Shields, tried, found guilty and fined. The case went to the European Court, and a year and a half later, the guilty verdict was overturned. Why was this?

The answer was simple. We British had completely failed fully to read and understand the Treaties and Regulations we had signed up to. In our Accession Treaty, we had handed all our waters up to the base line (The low water mark – the shore line) to the EU. When the first 10-year derogation giving us back exclusive use out to 12 mile expired, we reverted back to the original arrangement under our Terms of Accession for 24 days until the new derogation came into force. Kent Kirk proved that without a derogation – in other words during the first 24 days of 1983 – any EU vessel could have fished up to the British beaches.

In 2012, thirty years later, the Commission realised that, thanks to the increasing complexity of fisheries management, they were facing a similar situation. The next 10-year transitional derogation would not be ready in time to take over from Regulation 2371/2002 which was schedule to expire on 31 December 2012. In order to avoid a repeat of the Kent Kirk saga, the existing Regulation was extended by a year to give time to finalise Regulation 1380/2013 which replaced it seamlessly on 1st January 2014.

The lesson from these two cases is that when you hit a termination date, Regulations cease to apply if nothing is put in its place. This is particularly important with regards Article 50, as section 3 of the Article states that “The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period. “

As far as fisheries are concerned, unless an agreement is reached to change the negotiating timetable, two years after invoking Article 50, at midnight of the given day, all the terms stated within our EU Accession Treaty cease to apply, meaning that the legal basis for handing competency over the living marine resources within all UK fishing waters to the EU collapses and competency returns to HMG. Furthermore, as EU Regulations rely on the Treaties for their legality, those Fisheries Regulations which create and distribute EU quota and determine the percentage share out and who fishes what and where in the British zone also cease to apply.

To repeat, everything goes. This even includes the rights of EU vessels to fish in British waters, known as historic rights, which date from 1971. The relative stability quota share out of 1983 also goes. Bearing in mind that the EU quota system was designed as a tool of integration, rather than sensible fisheries management, its demise will be a very positive development. If, however, by the end of Article 50’s two-year negotiation period, the UK has not signed off a fishing policy to replace EU legislation, we will find ourselves in a legal positon whereby no British vessel can fish in EU waters and no EU vessels can fish in British waters, while all existing allocations cease to apply

What has to be understood is that once the clock starts ticking, it is imperative to have an agreement in place by the time we leave, for otherwise, this is the problem we will face on exit day. Under international law, our government will be legally responsible for the management of the UK 200 nautical mile/median zone, and we automatically revert back to the Fishery Limits (1976) Act.

Given the obvious benefit of regaining control of these resources and the consequences of the Treaties ceasing to apply, it is obvious that we will have the upper hand in any new negotiations with the EU over any access to our waters.  However, the UK government and fishing industry are far from united in their enthusiasm for the end of quotas and the return of fisheries to UK control. In the next article, I will explain the difficulties which could complicate negotiations – the concern of banks who have lent money based on EU quota that will be all be lost once we leave the EU.