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.

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.

 

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.

 

May admits coastal communities will be lost in transition

A press release from Fishing for leave

At PMQs yesterday (Wed 11th Oct.) Theresa May finally let the mask slip when asked a question on whether Britain would still be locked into the disastrous Common Fisheries Policy (CFP) during a transition.

Before the House of Commons the PM stated that Britain’s fishing industry and coastal communities will once again be bargained as part of the agreement to gain a transition/implementation period.

“As part of the agreement we need to enter into for the implementation period, obviously that (CFP )and other issues will be part of that agreement”.

Fishing for Leaves Alan Hastings raged “It is appalling that the establishment won’t even make a stand on fishing when it is such an “acid test” of whether we’ve taken back control – after being sacrificed to join it looks like Britain’s fishing and coastal communities will be sacrificed on leaving too”.

“It’s sickening that it is not for any benefit but to cravenly gain a transition period that will only leave this country prostrate at the hands of the EU”

Fishing for Leave highlighted that under international law Article 50 confers a clean slate on March 2019 where all EU treaties and law ceases to apply – taking Britain cleanly out the CFP and leaving the country free to make our own laws and deals.

“A transition has been spun as part of a gentle unwinding during leaving – IT IS ABSOLUTELY NOT”

“Legally Britain leaves the EU at the end of the Article 50 process in March 2019. A transition period isn’t part of leaving but part of a future deal with the EU”

“Therefore, a transition is only within the EUs gift to give and on their terms – this puts Britain at the EUs mercy – we will have taken back control in March 2019 only to give it straight back to the EU in a transition deal – its madness”.

This was confirmed by Michael Barnier on the 21st September. That any transition past the Article 50 cut-off date can only happen if the UK effectively re-joins the EU to get it.

”I would like to be very clear: if we are to extend for a limited period the Acquis of the EU, with all its benefits, then logically this would require existing Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures to apply

Alan Hastings fumed “Barnier has made it crystal clear – the only way the EU will give a transition is if it is entirely on their terms. Where Britain continues to obey all current and future EU law but has no say or input over them – it’s a worse position than being members – perhaps that’s the point!”

“Consequently, they can demand continuation of the CFP – most worryingly they can alter the rules to cripple and finish what is left of the British fleet so they clear the sea of the British industry”

“What Mrs May and her remain sycophants are doing just now in their desperation to Remain with the EU is prostrating Britain in regulatory purgatory as they hope to keep kicking the can down the road – lost in transition comes to mind”

“They are putting not only the fishing industry but the nation in a grave position at the EUs mercy”.

“Unless the political establishment wants to self-destruct when the public realises what they have done they must take back full control in March 2019”.

The campaign for an Independent Britain would like to point out that, while fully sharing Fishing for Leave’s concerns about Mrs May’s statement, it does not believe that this damaging transitional arrangement is anything more than a figment of her imagination, as we pointed out here.
We would also wish to thank Heather Wheeler MP for her comments on this press release. She said “This is a complete nonsense and wrong. We are giving notice on fishing and we are taking back our fishing limits and quotas.” CIB is seeking further information and clarification from ministers and any replies will be posted in due course.  Mrs Wheeler was a staunch supporter of Leave during the referendum.

 

 

Fishing for Leave welcomes Michael Gove’s statement on discarding

This press release first appeared on the Fishing for Leave website.

It was good to hear Secretary of State Michael Gove at Conservative Conference and a sincere thanks for his kind words to John Ashworth – the unfaltering founder of the fight to free Britain’s fishing from the EU and CFP.

One of the original Brexiteers in the 90s, without John’s encyclopaedic constitutional knowledge of the EU treaties we may have never known nor understood the EU and its implications– many still do not.

Markets and Morals dictate discarding – where fishermen are forced to discard the “wrong” fish to match quotas – must end.

Quotas cause discards. Discarding distorts information on effort and abundance creating inaccurate science. Poor science leads to poor quotas perpetuating a system that only reflect quota limits and talks to itself in a downward spiral.

Banning discards addresses the symptom (discards) not the cause (quotas). ‘Choke species’ will see vessels have to stop fishing on exhausting their lowest quota to avoid any discarding –bankrupting the majority of the fleet and finishing off communities Brexit or not.

Fishing for Leave looks forward to continuing to work with government on the world leading, bespoke British system of refined effort control (days-at-sea) we propose which solves both choke species by ending the cause – quotas.

Allowing vessels to land all catches in exchange for a limit on time at sea – meaning catch less but land all –will provide real-time science and management.

Government must accelerate engagement so this viable alternative is there to replace the CFP. Otherwise, due to lack of alternative, Britain will remain with the disastrous status quo of the CFP, quotas and discards or a ban that will finish the fleet.

The Icelandic approach is the quota system on steroids. It will accelerate the consolidation of the industry, especially as choke species under a quota system and discard ban will push what little fleet is left out, with only a few big operators able to survive.

Such a result would only benefit a few big operators and ‘slipper skippers’ who rent quota. Anyone advocating replicating what has happened in Iceland has a narrow perception of accelerating an “all for one – none for all” system.

Consolidation to a few, as in Iceland, will make it impossible to rejuvenate the industry and communities so everyone – large or small can survive and thrive.

Coastal constituencies that voted for Brexit and Conservative did not do so for an increased dose of the same bad medicine of Quotas in some sort of continuation of the CFP.

Continuing the same bad system in London instead of Brussels is no solution. Especially when there is a viable alternative that is more sustainable, gives accurate science and would allow a £6.3bn industry and communities to be rebuilt as a beacon of Brexit.

The Secretary of State and this government cannot continue the same system on steroids as in Iceland to appease Remainers (who want to stay aligned with the EU) or to appease a few big interests and slipper skippers.

Many of who were happy to stay in the EU and to see the majority of the British Industry thrown to the Wolves so they can take all.