The older Milipede – partly right but partly very wrong indeed

Before the referendum, at least one well-known pro-remain politician talked of leaving the country if we voted to leave. Unfortunately, not only has there been no indication that Red Ken has kept to his word and cleared off to somewhere like North Korea, where he would probably feel far more at home, but also some equally odious politicians whom we thought we had already got rid of have re-emerged from obscurity to give us their pennyworth on the subject of our future relationship with the EU.

David Miliband (remember him?) has recently chipped in to the Brexit debate, saying that we should have a second referendum which would include the option of staying in the EU. He was critical of Theresa May for her decision to start the two-year countdown to Brexit by triggering Article 50 without knowing the outcome.

Irksome as it is to find oneself in agreement with this arch-Blairite and remoaner, unfortunately, he is correct – at least on this point. The government does not seem to know what it wants. Yes, in the long term, it wants a deal with the EU which will give us considerable access to the single market without being subject to the “four freedoms”  – in other words, a bespoke trade deal like CETA. But utterances from HM Government have been very heavy on  the “deep and special” relationship but very light on detail. Furthermore, how are we to get there? We are hearing talk of a transitional deal or “deferred withdrawal”, as David Davis calls it, but while it is no pleasure either to be agreeing with someone like the former Chancellor Alastair Darling, he is right in saying, “you can only transition to a destination.”

Such outlines as have been released about the proposed transitional deal are distinctly unsatisfactory. The “deferred withdrawal” would see the UK spending a further two years after March 2019 as an honorary member of the EU with no voting powers. We would continue to apply all the EU acquis and to pay into the EU budget, but would be totally passive, with no input into the EU’s processes. This would be not only a betrayal of Brexit but “a legal minefield” according to Chris Bryant, an EU expert at lawyers Brewin Leighton Paisner. Even this arrangement simply cannot be agreed, signed and ratified in time for Brexit Day.

Mr Bryant then went on to say that the government doesn’t seem to have got to grips with the need to pin down even a transitional deal legally. “Vague talk is not going to cut the mustard.” This is the problem. The government is convinced that the EU will agree to some sort of transitional deal, but when David Davis was asked about what legal authority the EU had for this, he was very evasive – and with good reason.

This exchange with the SNP MP Joanna Cherry in the Sel;ect Committee on Exiting the European Union on 25th October is particularly enlightening:-

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.

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.

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.

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.

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 29 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”.

Even the most unsatisfactory idea of being a passive honorary EU member requires the EU to agree and such an agreement would require it to go through almost as complex a legal process as a long-term deal.  There is no indication that Mr Davis has appreciated this important point. His answers suggest that he cannot explain the legal basis under which the “transitional deal”,” implementation period”, call it what you will, can be agreed. Once we leave the EU on 29th March 2019, the treaties no longer apply to the UK, including the Lisbon Treaty, with its Article 50, so it will have to be something else. But what?

Furthermore, what guarantee is being offered that the transitional arrangement, if agreed, really will only last for two years?  David Davis was not convincing in his reply here too when questioned by Sammy Wilson MP over this. Ironically, he then went on to say that “no deal” still remains an option.

But  is it really? The “no deal” option  assumes that “with one bound, we will be free.”  In other words, there may be a few little glitches but we would still survive – and indeed prosper  – if we  cut our ties at a stroke in the event of the talks getting bogged down. There are many reasons to be highly sceptical that things will run anything like so smoothly.

In summary, the government seems to believe there are only two positions in which the UK could  find itself in March 2019 and both would be disastrous.The first would see us essentially still in the EU in all but name, the second is cloud cuckoo land.  – or rather, a massive headache for many businesses which could well lead to a very severe recession.

Where the Government is going wrong in its thinking on both the proposed long and short term relationships with the EU is its assumption that if any nation has aligned its own regulation with that of the EU, the EU will happily treat it as an honorary member of the club. This is to miss the whole point of the EU project – it is not a trading bloc but a political construct. The sheer complexity of Brexit has already shown to us just how much independence we have already surrendered thanks to Edward Heath’s manic determination to shackle us to this contruct.

So  Miliband is right in saying that the government should have worked out its exit strategy before triggering Article 50. Even all this time later, less than a week before the mid-point between last year’s referendum and Brexit day, the government still seems caught between a rock and a hard place  when it comes to devising a strategy which would enable us to leave the EU satisfactorily.

His other comments, however, are totally and completely wrong. “”Those of us who are outside the country take absolutely no pleasure in the low ebb to which Britain has sunk. Brits abroad look at the fact other countries see us in retreat, having lost our way” he said. For all the muddle of the negotiations at the moment, this is not a country in retreat nor one which has lost its way. Rather, we are groping our way slowly and indeed very awkwardly towards something better. It may be a long tunnel, but one day, there will be some light at the end. To reiterate a point made above – and indeed, on many other occasions on this website – the Brexit negotiations have laid bare just how many areas of public policy have been surrendered by our government as a result of 43 years’ membership of the EU. It has been like an octopus, wrapping its tentacles around our political institutions and slowly squeezing the life out of them. We want to escape before it finally throttles us. If we have sunk to a low ebb, it’s because of our membership of the EU, not because we voted to leave.

The Brexit vote was a vote to re-join normality – a reflection of our desire to be a successful nation state once again and a vote of confidence in ourselves that we can do it. I doubt if any of us involved in the campaign to free the UK from the EU have had the slightest doubt that it was the right thing to do.  Successful nation states are flourishing in Asia, North and South America and Australasia. Nearer to home, Norway, Iceland and Switzerland are happy outside the EU. Indeed, in Switzerland, one minister recently said that in his country only “a few lunatics” want to join the EU.  It will take some time to readjust and there is no denying that the government is in a mess over its Brexit strategy at the moment, but even if Miliband and his like cannot hide their contempt for the UK electorate’s decision to regain its freedom, we did the right thing and we will be vindicated  – eventually.

Photo by Hanna Irßlinger Fotografie

Fishing – a step backwards

The British fishing industry – the present situation

The British fishing industry faces a worrying future, as it is not clear what will happen post-Brexit. However, even before we leave the EU, next year could see many vessels put out of business, losing the very people we need to rebuild the fleet and infrastructure once we leave the EU.

2018 brings the next stage of the EU’s discard ban into operation, resulting in fishermen having to stop fishing once they have caught the full complement of the species for which they have the least quota – known as the choke species. Some estimate tie-ups could start by the end of February and last for the rest of the calendar year. It doesn’t matter how much quota you have on others species. The rules state that as soon as the species with minimum quota is reached, you and your organization will be forced to lay up.

On top of that, the fisheries plans for Brexit itself are confusing, causing confusion and doubt. The one glimmer of light is that the Secretary of State Environment, Food and Rural Affairs (Environment, Agriculture, Fisheries), the Rt. Hon. Michael Gove, whose brief covers three important areas of EU competency, made a flying start after taking this post in June, denouncing the London 1964 Fishery Convention, which will, in due course, keep foreign vessels out of our 6/12 nautical mile zone.

The past week has been encouraging with two oral question to the Prime Minister, and an excellent House of Commons Exit Committee session, (especially the first half), which took place on Wednesday 11th. October. It was good to get clarity from the four witnesses – Sir Stephen Laws, Sir Konrad Schiemann, Dr. Charlotte O’Brien and Professor Richard Ekins.

We in Fishing for Leave have maintained that when Article 50 terminates on 29th. March 2019, and the EU Treaties and Regulations cease to apply to the UK, we are out of the CFP. We then revert back to the 1976 Fishery Limits Act, and International Law – UNCLOS 3. However, from this Committee session came clarity that when the European Union (Withdrawal) Bill, becomes an Act, it is this Act we revert back to, the Act that has brought all the EU acquis back into domestic legislation, including fisheries regulation 1380/2013, re-establishing the right for EU vessels to continue taking around 60% of our Nation’s marine resource.

The danger of this Bill comes not from taking on board into domestic legislation those EU Regulations which only operate internally within an individual country but rather those which deal with interfaces between different countries, like the CFP reglations. The witnesses to the committee made it clear that while article 50 takes us out cleanly of the EU, on 29 March 2019,  the EU (Withdrawal) Bill takes us back in with our parliament’s blessing if the repatriation of the aquis is tied to a “transitional deal” as proposed by Mrs May. For fisheries that means we would be back in the CFP, all bar name and we would remain under ECJ control for up to two further years.

The witnesses also expressed surprise that the withdrawal bill appeared not to cover the eventuality of no agreement being reached.

Given the deliberations of the Committee, we can now understand the context of two important oral questions put to the Prime Minister and her answers. The first was by Kate Hoey, on 9th.October 2017

Kate Hoey (Vauxhall) (Lab)

The European Commission talks continually about the need for Her Majesty’s Government to provide certainty and clarity. Is there not one area in which we could provide that certainty and clarity very plainly, today and in our negotiations? Could we not make clear that in March 2019 we will withdraw from the common fisheries policy, take back all our fisheries, and ensure that our fishing communities actually take back control of who fishes in British waters?

The Prime Minister

The hon. Lady is right to suggest that when we leave the European Union one of the aspects of leaving it will be leaving the common fisheries policy. Of course, we will need to consider the arrangements that we want to put in place here in the United Kingdom for the operation of our coastal waters and the operation of fishing around them.

This does not answer the question regarding when we are going to be leaving the CFP. Will it be on 29th March 2019 as per Article 50? Also, what does Mrs May mean when she talks about our “coastal waters”?All very unsatisfactory.

Further questions were raised on 11th October:-

Mr Alistair Carmichael (Orkney and Shetland) (LD)

Is it the Prime Minister’s intention that the United Kingdom should remain part of the common fisheries policy during any transitional period after we leave the European Union? [900931]

The Prime Minister

When we leave the European Union, we will be leaving the common fisheries policy. As part of the agreement that we need to enter into for the implementation period, obviously that and other issues will be part of that agreement. But when we leave the European Union, we will leave the common fisheries policy.

This is a very confusing answer; which date are we leaving? By raising the subject of an implementation period it sounds as if it is to be later than the official Brexit date – 29th March 2019. Fishing is going to be part of the withdrawal agreement which means a final withdrawal treaty, which in turn brings in problems.

Then on the same day 11 October another oral question was asked by Mrs Sheryll Murray, the MP for South East Cornwall, as follows:-

Will my right hon. Friend confirm that once we leave the EU we will have total control over our internationally recognised fisheries limits, that fishermen from Scotland, Wales, Northern Ireland and England will benefit from any new management regime, and that this will not be bargained away during any negotiations?

Damian Green  (First Secretary of State and Minister for the Cabinet Office)

I am happy to assure my hon. Friend that when we leave the EU we will be fully responsible under international law for controlling UK waters and the sustainable management of our fisheries. Through the negotiations we will of course work to achieve the best possible deal for the UK fishing industry as a whole.

This answer poses the question as to whether our Government understands our obligations under International law. If it did, you wouldn’t be taking about achieving “the best possible deal”. International law is clear; as far as fishing is concerned, it is the EU which has to ask for a deal, not the UK.

It was nine months ago when Fishing for Leave raised the issue of the Great Repeal Bill (now the European Union (Withdrawal) Bill) with the newly-created Department for Exiting the EU (DExEU). We were concerned about the Exit day being moved through domestic legislation. We have said all along it could bring a legal challenge on acquired rights, bogging us down for years, thanks to the Vienna Convention on Treaties. To this day, DExEU is dismissing this out of hand.

To play safe, just as Michael Gove did with the 1964 London Fisheries Convention, it would be a safer bet to exempt all fisheries regulations from the withdrawal bill.

All this may sound confusing and technical, but having spent over 50 years in the fishing Industry, one issue of which I am convinced is that new UK management system will be based on either the Icelandic model or Fishing for Leave’s model – i.e., Quota or effort limitation. If we go down the Icelandic model, our UK coastal communities will not benefit, and I would not like to sell that to the electorate. We are talking about a national resource, where all the people should benefit, not a few.

 

Fisheries: One MP talks sense as battle over quotas continues

A week ago today, the subject of fisheries was raised by Craig Mackinley, the Conservative MP for Thanet South, in the debate over the European Union (withdrawal) Bill.

The relevant part of his speech, taken from Hansard, was as follows:-

“I support it {The European Union (Withdrawal) Bill} completely for legislation that is applicable only to the United Kingdom, but when dealing with legislation that involves relationships outside the United Kingdom, such as the common fisheries policy, I have a few concerns, because the body of legislation—the acquis—that is the CFP is made up almost entirely of regulations. The only way we can achieve compatibility is through a legally binding withdrawal agreement, and that in itself brings some problems. First, at this stage, we do not know what that agreement will contain. Indeed, we do not even know if we will be getting an agreement at all, such has been the appalling behaviour, sadly, of our EU partners.

Secondly, taking the common fisheries policy as an example, article 50 takes us out cleanly, so there is no possibility of future legal challenges that we would have to try to avoid. Regulation 1380/2013, which will be brought across by the Bill, will re-establish the common fisheries policy in all but name, possibly paving the way for a legal challenge, perhaps via the Vienna convention on international treaties, through the withdrawal agreement. The evidence of that is the acquis that we have accepted and transposed into UK law, thereby creating a continuation of rights thereon.

I would like to see the proposed fisheries Bill, which is due before us at some stage, and which could solve the problem. We have no idea what that Bill will contain. Will it continue to give away the nation’s wealth that is its fish? Will it continue the disastrous CFP policy of quota allocation, which puts the resource in the hands of a few, and is the cause of the completely immoral discarding of prime fish that we have seen all these years? We simply do not know. Why are we going down this tortuous route when the easiest route would be to exempt the entire fisheries acquis from the withdrawal Bill, and produce a fisheries Bill, coming into force on 30 March 2019, that confirmed what international law bestows on this nation? That is not unusual, because the withdrawal Bill already exempts parts of the charter of fundamental rights.

Fishing is the area in which the British people demand a clean Brexit, and I think they will accept nothing less. Fishing must not be used as part of a trade-off, and availability must not form part of a deal elsewhere. Control of our exclusive economic zone extending to 200 nautical miles or the median line will regenerate our coastal communities, but if we follow current fisheries policy, we will certainly fail to do that. It is quite odd that we commit vast amounts of cash to communities such as mine in Ramsgate, Broadstairs and parts of Margate through the coastal communities fund—I am thankful that we do—but we seem to have no clear commitment to the one thing that could provide great rejuvenation for our coastal communities, which are recognised as having lower rates of employment, and which are in need of restructuring and infrastructure.

On this subject, the electorate are very wary of shenanigans. We cannot afford to create failure, and it is our responsibility to make this a success. I am happy to trust the Government by supporting Second Reading tonight, but I would very much like to hear more about their proposals for restoring one of this nation’s finest treasures—our very positive fishing grounds, which have the potential to benefit our communities and should never have been taken away.”

It is encouraging that at least one MP has spoken so clearly about the key issues as far as fisheries are concerned.  There is much vested interest, particularly among those who have bought quota, to keep the status quo. This, as Mr Mackinley rightly points out, will do no good whatsoever to our coastal communities and especially the smaller family-owned fishing boats which may struggle to survive 2018 if the new discards ban is enforced.

 

The European Union (withdrawal) Bill 2:- Power grab?

In the first article looking at the European Union Withdrawal Bill, we set out the principle behind it but pointed out that it was impossible for EU regulations and directives to be transferred verbatim onto out statute books. As an example, we used one of the shortest and indeed, most pointless of all Regulations,  the so-called “Cuddly Toy Sheep” Regulation 1462/2006.

The object of this regulation is pretty simple  – that the toy in question may be given the appropriate  classification code for customs purposes. If we were to use the same codes on Brexit and use similar customs checking processes, transposition of this law into domestic law ought to be pretty simple. We remove all references to the Commission, the Treaties and references to Member states, extract the important bits, find a new template, perhaps even using the relevant bits of a piece of pre-1973 legislation, change a few words here and there and Bob’s your uncle! All done.

Actually, no. The Regulation we have been using as an example cross-references another Regulation 2913/92. This reference will have to be changed. Then the regulation which is cross-referenced talks about the Community Customs Code. Even if we were to be as foolish as to seek some sort of customs union with the EU, which we argued was very unwise, this bit will need to be re-worked as the term “Community Customs Code” would not be appropriate to describe the customs arrangements of an ex-member state.

So it is quite apparent that even a simple piece of EU legislation which our Government may wish to retain in a way that it works after Brexit exactly as it did before will need to be re-written in places. Given that in October 2015, the EU acquis amounted to 23,076 pieces of legislation and has grown further since, it is very apparent that our teams of Civil Servants will have a massive task on their hands  if everything will be ready for Brexit day.

If this concept is relatively straightforward to explain, a more complex issue is concept of the superiority of EU law over domestic legislation.  Our accession to the European Union granted power to the EU to introduce or amend legislation superior over British law “without further enactment.” (These three words come verbatim from the European Communities Act 1972.) On leaving the EU, what status do EU laws have relative to earlier domestic legislation? This is not an easy question to answer, even if you are a lawyer.

The concern among both Opposition MPs and the devolved assemblies in Edinburgh, Cardiff and Northern Ireland is that a combination of the re-writing process and the complexity of any new relationship between legislation which originated in Westminster and that which was passed down to us from Brussels will actually change the make-up of our statute books without Parliament being consulted or even being aware.  In other words, the Government  will use the EU (Withdrawal) Bill as an opportunity to further its own political agenda without requiring Parliamentary scrutiny. It certainly does appear to  strengthen the hand of the executive, rather than Parliament, because of the delegated powers it contains.

At the heart of this so-called “power grab” is the use of the Statutory Instrument – a facility which, in certain situations allows the government to make or amend legislation without Parliament having he power to change or even debate it. Given that MPs are our elected representatives, the very existence of anything which allows the democratic process to be bypassed is unsatisfactory. There is, however, a certain irony in the loudest critics of the use of Statutory Instruments being europhiles – after all they support our EU membership which reduced the power of Westminster. Ken Clarke famously said in 1996 ““I look forward to the day when the Westminster Parliament is just a council chamber in Europe” so any new-found commitment to Parliamentary democracy is somewhat hypocritical given the real loyalties of Europhile MPs lie in Brussels, not Westminster.

There is no doubt that Brexit provides us with an opportunity to re-boot our complete democratic process and indeed, this needs to go well beyond giving Parliament greater opportunity to hold the government to account by strengthening its powers of scrutiny. Our democratic process should be re-vamped to give us, the people, greater power over the people we elect to represent us and ot hold them to account if they, individually or collectively, do a bad job.

But that is for the future. The immediate concern of groups like Unlock Democracy is that the sheer complexity of repatriating EU law is that some legislation derived from EU Regulations and Directives may be weakened or lose its force completely. There is another possibility that the amount of work required in re-working all this legislation will end up with ambiguities more by accident than design.

The Hansard Society has come up with three proposals which at least mitigate these concerns:-

  1.  The EU (Withdrawal) Bill should be amended to circumscribe the powers it delegates more tightly.
  2. A new, bespoke, EU (Withdrawal) Order strengthened scrutiny procedure should be introduced for the exercise of the widest delegated powers
  3. A new House of Commons ‘sift and scrutiny’ system – with a dedicated Delegated Legislation Scrutiny Committee – should be established for all delegated legislation

These are eminently sensible suggestions. The only problem is the timescale. We cannot afford to arrive at Brexit day with any gaping holes in our legal system. To take one obvious example – there will be little if any pre-1973 domestic legislation relating to information technology, the Internet or mobile phones. Massive developments have taken place in these fields since we joined what has become the EU. It is therefore very likely that most of the legislation regulation which govern them comes from the EU. If a given piece of EU legislation slips through the net, some important aspects of day-to-day life for many of us would be completely unregulated.

This piece only scratches at the surface of the complexities our politicians and civil servants face. A huge task lies ahead of them and one which is even more critical than securing a trade deal with the EU.

However given we are talking about well over 20,000 items of legislation, are there some which are so obviously inimical to our interests as an independent, sovereign nation that they should be excluded from the European Union (Withdrawal) Bill altogether? We will consider this subject in the next article.

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