Fishermen Scorn Theresa May’s Spin As Britain To Be Trapped In Transition

Theresa May says Britain will leave the CFP

Fishermen say that’s political spin and stating the legally obvious

There’s a distinct difference between officially leaving and maintaining “regulatory alignment”

Pursuit of “Transition” period where UK must obey ALL EU laws means we will run mirror policy.

Mrs May told MPs: “We will be leaving the Common Fisheries Policy on March 29, 2019 and the Common Agricultural Policy as I indicated”.

However, the mask slipped to the truth when the PM continued that; “Leaving the CFP and leaving the CAP” wouldn’t give the opportunity until “post that implementation (transition) period – to actually introduce arrangements that work for the United Kingdom.”

 “The arrangement that pertains the fisheries during that implementation period will, of course, be part of the negotiations for that implementation period”.

Fishing for Leave has scorned Theresa Mays political spin as either being mendacious or naive to the reality of the position the government is digging itself into with pursuit of a Transition deal.

Alan Hastings of FFL said
“It is a legal matter of fact that we will officially leave the EU and with that the disastrous Common Fisheries Policy (CFP) at the end of the Article 50 period.  It’s not a question of do we leave, it is a question of what we do thereafter that is of grave concern and that fishing will be part of negotiations for that transition period”

“A “transition” period where we re-agree to obeying ALL EU law and will maintain “full regulatory alignment” is truly terrifying – we may have officially “left the CFP” but we’ll be locked into running a mirror image when we could walk away under Article 50 and automatically regain all control under international law– the Prime Minister is politically spinning with a forked tongue”

At last week’s Council of minister’s the EU reiterated what the EU Commission has clearly stated that agreeing to a “transition” period will mean obeying ALL EU law, including new ones after Britain officially leaves the EU under the Article 50 procedure.

Michel Barnier – Speech Rome – 21st Sept. ‘17
“On the 29 March 2019, the UK will leave the EU and will become a third country…without a withdrawal agreement, there is no transition – this is a point of law.
If we are to extend for a limited period the Acquis of the EU, then logically
this would require existing Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures to apply.       The UK would have to comply to all EU courts and… refer questions related to interpretation of rights deriving from European law to the Court of Justice of the European Union (ECJ). The Court of Justice would remain the ultimate guarantor of the agreement.”

If this wasn’t clear enough to HM Government President of the European Council Mr Tusk reiterated the same words again at the conclusion of Phase 1 talks on 8th December

 Donald Tusk – Phase 1 talks – 8th Dec. ‘17
“As you know the UK has asked for a transition of about 2 years while remaining part of the single market and customs union…during this period the UK will respect the whole of EU law including new law”.           “It will respect budgetary commitments, it will respect judicial oversight and of course all related obligations. Existing Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures will also apply”.

Fishing for Leave highlight that Article 50 clearly says “the treaties (all EU law) shall cease to apply” at the end of the Article 50 period at 11pm on 29th March ’19.  This means Britain is out the entire EU including the disastrous CFP.

To add further weight to this international law under Article 70 of the Vienna Convention says;

“the termination of a treaty does not affect any rights, obligations or legal situations created through the treaty…. unless the treaty otherwise provides or the parties otherwise agree”.

Quite clearly the EU has otherwise provided through Article 50, Section 3 of the TEU.

This means that by the EU 27 agreeing to end the treaties there is no recourse under international law for them to have any sway over Britain in terms of laws, courts, money or fishing policy.

However, as a “transition” period is part of the deal once we have left the EU under the provisions of Article 50 it is only in the EU’s gift to grant.

Alan Hastings continued;
“Therefore, as the EU has clearly stated, it is on their terms and to get a “transition” the UK will have to capitulate to obeying all EU law to cancel out the provision of Article 50.

The only way to do this is as part of a new deal after we legally leave on 29th of March – such an agreement would have to be ratified by a new Withdrawal treaty.

This means we will have re-joined the EU in all but name having to obey its laws and directives with no control or say in some sort of legal purgatory.

In effect the UK breaks the treaties and leaves under Article 50 of TEU and Article 70 Vienna Convention. Thereafter, the UK agrees under our own steam (in a new treaty) to continue to recognise EU laws and authority under this new agreement.

Conveniently all EU law will be hibernating on the UK statute book having been adopted with the EU Withdrawal Bill.

We officially “legally” Leave the CFP but under the governments current strategy we will have capitulated to being trapped in a transition in some sort of legal purgatory where we will be running a mirror of the CFP as some sort of vassal state”.

Fishing for Leave says they have doubts that under a transition the UK will ever escape.

As re-obeying ALL EU law in a “transition” will be enshrined under a new treaty then “unless the treaty otherwise provides” Article 70 of the Vienna Convention says; “the termination of a treaty does not affect any rights, obligations or legal situations created through the treaty”.

This will allow the EU to claim continuity of rights along with Article 30 of the Vienna Convention, it’s a grey area & therefore could nail the UK governments feet to the floor in a protracted legal fight.

By the time the UK escapes being trapped in a transition there will be very little industry left. This is what is terrifying for two reasons.

1) By having to obey All EU law including new law whilst not being a member state means the EU can move the goal posts to finish off what is left of the British industry.

2) The EU quota system causes discards as fishermen have to catch and discard fish to find what they can keep to match their quota. In all its wisdom the EU enacted a ban on the symptom (discards) rather than address the cause (quotas). This means as of 2019 when vessels exhaust their lowest quota to avoid discarding it must stop fishing. These “choke species” will decimate 60% of the UK fleet according to Seafish statistics. http://www.seafish.org/media/Publications/Seafish_landing_obligation_-_FINAL_REPORT_2_seafish.pdf

Alan Hastings concluded;
“It is an impossible contradiction for the UK to be free of the EU and the CFP and have a transition.
Adopting all EU law and then agreeing to a transition whilst we obey that law flies in the face of ‘taking back control’ and exposes this country to huge risk legally.

The governments remain biased doddling and ineptitude is leading not only fishing but the country into a seriously dangerous position and putting us at the EUs mercy. It would seem that the government is still trying to play at ‘being in Europe but not run by Europe’.

Trying to carve out a “deep and special partnership” that is just not on offer to reframe some sort of half in half out relationship – Mr Hague couldn’t get it, Mr Cameron couldn’t get it and the EU is clearly saying Mrs May isn’t getting it either.

We therefore call on the government to walk away from the punitive terms the EU is demanding to allow the government to fulfil what it says it will do – properly and fully regain our sovereignty and independence provided by Article 50 not trap us in transition as a vassal state to finish off our industry when Brexit should be our salvation”.

Where our negotiators are going wrong- Part 2

Article 50 of the Lisbon Treaty – or, to quote its proper name, the treaty of European Union (TEU) – is clear and precise with the added advantage that 27 Member States agreed its terms and all 28 current Members reconfirmed these provisions through the Accession Treaty of Croatia. So there can be no legal comeback when the Treaties cease to apply to the UK at 23.01 on 29th March 2019, and competency (control) of our Fisheries Exclusive Economic Zone (EEZ) ­of 200 nautical miles or median line becomes the responsibility of every single Member of Parliament in Westminster.

We will see the UK leave the Common Fisheries Policy, (CFP) and our EEZ will be operated under the guidance of international Law – UNCLOS3 – well, that is the theory.

Things do get more complicated, however, as Our Westminster Parliament is proposing to bring all the EU legislation in force up to 29th March 2019 (the Acquis), into domestic legislation, and this will include the CFP. This means that, having left the CFP legally and with the full support of all EU member states, our Parliament will then endorse what we have left through the European Union (Withdrawal) Bill. It will not be the CFP in name, but a carbon copy of the CFP, giving exactly the same rights to EU vessels in our EEZ as they currently enjoy.

It is a pretty poor outcome for our negotiators: All 27 EU member states have returned the competency back to Westminster and Westminster then passes a law giving those rights back.

The Government claims that it will also introduce a Fisheries Bill. At the moment, however, we have no idea of its contents or whether it will be robust enough to ensure UK control of our EEZ enabling us to introduce a UK system of fisheries management during the next stage of the Brexit plan – the two year transitional period also known as implementation period.

The Government does not wish to apply for an extension of the two years stipulated by Article 50, because it is concerned that the 17 plus million voters who supported Brexit will turn against them. Taking nearly three years to leave the EU is just about acceptable but five years would not be tolerated. The Government would be punished at the general election.

So the date of 29th March 2019 will remain as the date of leaving, and at 23.01 of that day we will no longer be a member of the EU and will become a “third country”. This means that all EU treaties cease to apply within the UK, including Article 50 of the Lisbon Treaty, so while the transitional period will be negotiated under Article 50, the actual implementation of that period will have operate under a different legal basis – a new treaty.

Both the European Commission and the European Parliament (which has a final say on any agreement), have made it very clear that no non member can have the same terms and conditions as a member, which is rather obvious otherwise there would be no point being a member.

One issue of which we can be sure is that, irrespective of the Fisheries Bill, the EU will demand that any implementation treaty must include the Fisheries Acquis and being a treaty, we could find ourselves falling foul of the Vienna Convention on Treaties, especially article 30 and 70, if the EU, a single member state or individual challenges the rights if our own Parliament rescinds what they  established. We could end up in a lengthy legal process.

This transitional/implementation period will be under the full authority of the EU institutions, including the ECJ, but there will be no UK representation at all. Even though the Secretary of State for Exiting the EU stated at a select committee session on 25 October 2017 that no new EU law will be acceptable post Brexit because it will be sorted before Brexit, no cherry picking will be allowed, so we would have to accept any new legislation during that period.

For the past 30 years, successive governments and main political parties have claimed that we hold a considerable degree of influence within the EU, but from April 2019 to March 2021 (perhaps 2022 as the European Parliament would allow up to three years), we would in effect be governed by the EU, as a third country, with no input whatsoever.

The Prime Minister and Ministers have made it very clear during this period that would adhere to International Law on fisheries. It is absurd that over the years, many UK political leaders have condemned the Common Fisheries Policy and yet our own Parliament could end up unilaterally implementing the very policy they condemn. Furthermore, this would not comply in any form to the requirements of International law, UNCLOS 3, especially Article 61 (Conservation of the living resource), Article 62  (Utilization of the living resource), Article 63 (Straddling stocks) and Article 64 (Highly migatory species).

Fishing for Leave has  produced a management plan/model, designed by those with practical experience, for the UK’s fishing EEZ that ticks all the boxes. It is environmentally sustainable, follows International law, creates harmony between fishermen, scientists and fishery officers, while at the same time if will engender a revival of our coastal communities. This plan is based on the Faeroe Islands’ “days at sea” principle, but it has learnt from the Faeroese’ mistakes and is an improvement on the original crude “days at sea” model The Faeroese Government is impressed and is now extremely interested in the FfL model. By contrast, the alternative, which we could yet end up with, is a carbon copy of the present CFP. It will be a complete failure  – socially, environmentally, and economically – and could end up giving the Nation’s resource away permanently.

There are those that appear to think that as far as fisheries is concerned, the UK will still be subservient to the EU after Brexit. With our mixed fisheries, which requires its own plan, we should be the world leader. We will never get another opportunity to do this and it is down to political will. The buck stops with every Member of Parliament in Westminster; the potential is there to make Brexit either a huge success, or a catastrophic failure. Failure will bring with it a very heavy price, because although the responsibility rests with every MP, the electorate will see it as the Government’s fault.

Where our Brexit negotiators are going wrong – and it’s not just fishing!

When anyone says they want “a deep and special relationship you know they are only looking at their side of negotiations and are oblivious of the other side’s position.

The EU isn’t in a position to give us such a relationship. The project must come first – in other words, the first duty of the European Commission and Parliament is to preserve the unity of the remaining 27 members. They don’t want other countries leaving and expecting a special deal.

The UK Government also states that The same rules and laws will apply before and after Brexit. There is nothing wrong in moving the EU acquis across into domestic legislation through the European Union (Withdrawal) bill for areas that apply only within the UK. It is a different matter with any legislation which include a degree of interaction with EU27 – fisheries policy, for example. We may point out that we are maintaining regulatory convergence but the laws are not compatible from the EU prospective because in March 2019, we will no longer be an EU member state.

At the bottom of the majority of EU regulations it states: This Regulation shall be binding in its entirety and directly applicable in all Member States. As we will be no longer a member the regulation is neither binding nor applicable on the UK.

So while the two highlighted statements sound convincing at first glance, they are not and the fact that our negotiating team keeps repeating them shows that in reality, they are very vulnerable.

The Transitional deal

The above comments apply equally to the proposed two year transitional period. Because of the time which has already been lost, many in the establishment are hailing this as an important step forward but in reality, they have failed to appreciate how catastrophic the terms of such a deal are likely to be.

Fishing for Leave believes that only when the negotiations reach the point when a transitional arrangement can be discussed – which David Davis expects us to have reached by end of March 2018 – will it become apparent just how severe the conditions that will be imposed on the UK actually are.

The European Parliament has made its position clear in this document.  There will be no UK representation in any EU institution during that period, but we will have to accept the full rigours of EU institutions, and who is to say it will only last two years? We could well find ourselves no further forward in March 2021. Far from being Brexit, these two years (or perhaps longer) could well be the worst two years of our involvement with the EU project.

Let us consider some of the evidence for this:-

Firstly, from the House of Commons Department for Exiting the EU Committee 25th October 2017 (Our comments in Italics)

Q67            Joanna Cherry: Can I go back to the transitional period or the implementation period?  What is your understanding of the legal basis for a transitional deal or an implementation period?

Mr Davis: The presumption we have been working on is that it comes under the Article 50 proposal.  It was raised with us by the Commission.  The European Parliament sees it in those terms.  I am assuming the Commission legal service does.  But in many ways it is a question almost for the Commission rather than me.

If you are to negotiate, you have to know the legal basis under which you are working and not leave it to the other side.

Q68            Joanna Cherry: Do you have any legal advice of your own as to the basis of a transitional deal or implementation period?

Mr Davis: I am not going to share the legal advice for the reason I gave earlier: that is the convention.  But our belief is that it fits under Article 50.

Q69            Joanna Cherry: Legal advice exists, and it is your belief that it is under Article 50.

Mr Davis: I am not going to be drawn any further on that.  I said I believe it is going to be under Article 50.

As Article 50 comes from the Lisbon Treaty – TEU, it will cease to apply on 30th March 2019, so the transition period can be negotiated under article 50, but the implementation of the transition period will have to be under another EU legal basis.

Q70            Joanna Cherry: Article 50 does not actually say anything about transitional deals or implementation periods.

Mr Davis: Article 50 does not say very much about anything, if you read it.  It is the blandest and unhelpful phrase you are ever likely to come across, but there we are: that is that.

Article 50 is clearly laid out, and does not make reference to a transitional period.

Q71            Joanna Cherry: What it does make clear is that, during any period of deferred withdrawal, the treaties would continue to apply, so if we went into a period of deferred withdrawal under Article 50 we would still be in the single market; we would still be in the customs union; and we would still be under the jurisdiction of the European Court of Justice.  That is correct, isn’t it?

Mr Davis: My response to that is the same as my response to Mr Bone: we are not looking for deferred withdrawal; we are looking for an implementation period.

 If that is the case, whether you call it a transition deal or an implementation period, the bottom line is that it will not be covered by Article 50 because, along with the rest of the EU treaties, it will cease to apply on 29th March 2019

Q72            Joanna Cherry: But if it is the case that, as a matter of law, all you could have under Article 50 was a deferred withdrawal, we would not be leaving on 29th March 2019, would we?

Mr Davis: That is not what we have been negotiating for.  The phrase “deferred withdrawal” has never been used to me by the Commission.  The phrase they use is “transition period”.  Our term of art is “implementation period”.

(FfL believes Joanna Cherry is correct)

Then we move onto who will actually be running the country during the transitional period

Q58            Mr Rees-Mogg: To follow on from Mr Bone’s question, the worry is when we get to 29th March 2019 we stay under the auspices of the European Court; we are still in the customs union; we accept new rules as they come through; and we keep on paying money with the promise of a trade deal on the never‑never.

We are still therefore within the European Union for a further two years.  All that has happened is the endpoint has been delayed and the uncertainty in 2021, which the aim is to avoid, is just as great—but we have stayed in the European Union for two years longer and not achieved what we are aiming for.

Mr Davis: There are ways around that, but, if you forgive me, I am not going to detail them here today.

Q89            Mr Djanogly: During that period, will the UK have to accept new EU laws made during that period?

Mr Davis: One of the practical points of this, which anybody who has dealt with the European Union knows—as you will have done, I guess—is that it takes two to five years from inception to outcome for laws to make it through the process.

Anything that would have impact during those two years we are talking about will already have been agreed with us in advance.  Anything that happens during it will be something for subsequent discussion as to whether we propose to follow it or not.

This is another area where FfL believes Davis is wrong. As far as we understand things,  it is the acquis which has passed onto the UK statute books on or before 29th March 2019 that will be covered by the European Union (Withdrawal) Bill, not work in progress, that is moved across to domestic legislation, and as cherry picking is supposedly not on, Davis’s answer is unusual, and Rees-Mogg and Djanogly were in order to ask those questions.

Michel Barnier’s comments to House of Lords Committee 12th July 2017

  1. Barnier made it quite clear that the transition period would see us under the thumb of the ECJ:-

“You talked about the risk of divergence. It is a risk, not a certainty. The repeal Bill is meant to bring EU legislation into British laws, and that is very good and important, but what will happen D plus 10 or D plus 20? How will your law and your standards develop? ……

That period will be set in a framework, a transition period, and then there will be a new relationship. I cannot give you a time more precisely than that. I cannot even tell you the nature of it. All that I can say—and I can say this in the name of the EU—is that during that period we will maintain, in relation to the internal market, the regulatory architecture and supervision of the Court of Justice.”

The European Parliament said exactly the same thing three months earlier:-

From European Parliament resolution of 5th April 2017

Transitional arrangements

  1. Believes that transitional arrangements ensuring legal certainty and continuity can only be agreed between the European Union and the United Kingdom if they contain the right balance of rights and obligations for both parties and preserve the integrity of the European Union’s legal order, with the Court of Justice of the European Union responsible for settling any legal challenges; believes, moreover, that any such arrangements must also be strictly limited both in time – not exceeding three years – and in scope, as they can never be a substitute for European Union membership;

Michel Barnier raised further complications about the transitional deal:-

  • We will be able to apply absolutely no pressure on the EU during this time.

Speech by Michel Barnier at the press conference following the third round of Article 50 negotiations with the United Kingdom

Brussels, 31st August 2017

“…but it also wants to have these standards recognised automatically in the EU. That is what UK papers ask for. This is simply impossible.”

  • Even a transitional deal would require a treaty

Speech by Michel Barnier in front of the Committees of Foreign Affairs and the Committees of European Affairs of the Italian Parliament

Rome, 21st September 2017

The dialogue we are having here today – as in all national parliaments – is essential because our future partnership with the United Kingdom, and its legal text in the form of a treaty, will have to be ratified by you, when the time comes.  Once again, the future of the Union is our priority, not Brexit

Finally, the implication for fisheries

FfL believes the Government is heading into uncharted waters; creating problems for which they and not the EU are responsible.

1) Article 50 takes us cleanly out of the EU and the CFP, with no legal repercussions.

2) The European Union (Withdrawal) Bill takes us back in all but name if we include the fisheries regulations of the acquis. What we have just left, our own UK Parliament intends fully to take us back into again.

3) The proposed two year transitional/implementation period will require a treaty and during that time, we will be subject to the CFP.

Furthermore, FfL believe that it wouldn’t just be fisheries which would be affected by this “out and in” process, which could cause us to fall foul of the Vienna Convention on the Law of Treaties, a notoriously grey area, which could bog down the system with lengthy and complex legal cases.

While it is the intention of HMG to produce a Fisheries Bill, we don’t know what will be in the Bill. Can it be made watertight? This could be difficult in view of the EU stating there can be  no cherry picking in any transitional arrangement. We can be sure that the EU would  not allow the present fishery arrangements to be exempted from such a deal and worse still, EU control of our fisheries could become permanent if the Government does not change course and exempt the EU fisheries regulation from the European Union (Withdrawal) Bill.

Fishing:- Template letter to MPs

A number of our members and supporters have been in touch after signing the petition to stop the Common Fisheries Policy being adopted into UK law post-Brexit.

They have received a reply from the government e-petitions site which includes the following:-

A group of MPs called the Environment, Food and Rural Affairs Committee are investigating how possible changes to the fisheries and seafood trading arrangements between the UK and the EU will affect fishers, seafood processors, consumers, coastal communities and the environment.

To help them with their investigation, they’d like to hear from you.

The Committee are particularly interested in these questions:

1. What are the most important things that the Government need to look at when thinking about UK fisheries?

2. What are the challenges and opportunities that UK fisheries will face after the UK leaves the European Union, Common Fisheries Policy and London Fisheries Convention?

3. What stock management objectives should the Government establish in order to achieve the right balance between the interests of seafood consumers, fishers, seafood processors and the environment?

4. What trade policy objectives should the Government establish in order to achieve the right balance between the interests of consumers, fishers, seafood processors, and the environment?

5. How effective are the Government’s arrangements for representing the interests of the UK’s constituent nations within the UK’s negotiations for fisheries?

Please see this attachment which we believe provides a suitable template for your reply. In our opinion, these five questions raised above do not get to the core of one important issue – that UK authorities alone must determine who fish in our waters. This letter does make that point and strongly endorses the “Faeroe-Islands-Plus-Plus” model advocated by Fishing for Leave.

We would strongly recommend not sending it verbatim as politicians are more likely to ignore large numbers of identically-worded e-mails or letters, but on the other hand, we also suggest that you largely stick to the subjects covered in the template, as much of the content originates with Fishing for Leave, which includes the most experienced fisheries campaigners in the country.

 

As a post script, if you would prefer to stick more closely to the five questions, John Ashworth of Fishing for Leave has provided the following suggestions:-

1) What are the most important things that the Government need to look at when thinking about UK fisheries?

  • That the UK becomes a world leader in fisheries management
  • Do not copy the Common Fisheries Policy
  • Re-establish our coastal communities
  • Address the issue of discarding of dead fish
  • The Nation’s resource must not end up in the hands of a few

2) What are the challenges and opportunities that UK fisheries will face after the UK leaves the European Union, Common Fisheries Policy and London Fisheries Convention?

  • Establish the UK as a maritime nation again
  • Create a multi billion pound industry, plus ancillary, including recreation and tourism
  • Get rid of the quota system
  • Abide by international law
  • Work with nature, not against
  • Create a policy that unites fishermen, fishery officers, and scientists

3) What stock management objectives should the Government establish in order to achieve the right balance between the interests of seafood consumers, fishers, seafood processors and the environment?

  • Use sea-time limit, not quota allocation, as that causes dumping
  • Maintain a balance between small, medium and large vessels
  • All marine resource caught in the UK’s EEZ must be landed in UK, unless individual permission is given by the UK government

4) What trade policy objectives should the Government establish in order to achieve the right balance between the interests of consumers, fishers, seafood processors, and the environment?

  • Trade deals should not be linked to access to UK fishing waters. Keep trade/access seperate
  • What marine resource the EU buys from UK cannot be readily obtained from elsewhere.
  • Must abide by internatonal law
  • You have to catch marine resource before you can process or sell it

5) How effective are the Government’s arrangements for representing the interests of the UK’s constituent nations within the UK’s negotiations for fisheries?

  • We don’t know as to date we have heard very little. I suspect the department would prefer the UK territorial waters out to 12 nautical.miles to continue to be devolved but the EEZ of 12 to 200n. Mile/median line as one unit.
  • Four separate EEZs would be a nightmare as international reciprocal arrangements have to be agreed.

 

Fishing – a step backwards