The Transitional deal and “good faith” will decimate our fishing industry

A briefing note from Fishing for Leave

The Transition deal the government is agreeing with EU has dire implications and presents an existential threat for what’s left of the British fishing industry and coastal communities.

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

By subjecting the UK to re-obeying all EU law the transition negates the clean slate provided by Article 50, which states (as agreed by the EU) that the “treaties shall cease to apply” and with that all rights and obligations accrued under the treaties – including the disastrous, inept CFP. The transition squanders the chance to automatically repatriate our waters and resources to national control by reverting to international law (UNCLOS) and domestic legislation.

The 21month transition period means the EU will be free to enforce detrimental legislation to cull what is left of the British fleet. The EU has every incentive to do so to enable the use of international law (UNCLOS Article 62.2) to claim our resources we would no longer have the fleet to catch.

DISCARD BAN

The EU can do so in 21 months using the inept EU quota system which is wholly unsuited to our highly mixed fisheries and forces fishers to catch more than necessary and then discard to find the species their quota allows them to keep.

As of 2019 the EU discard ban is to be fully enforced, however, this ban addresses the discard symptom not the quota cause. Consequently, from 2019, when a vessel exhausts its smallest quota it must stop fishing to avoid discarding. These ‘choke species’ quotas will force vessels to tie up early in the year. Public body Seafish calculates 60% of the resources the UK is currently allocated will go uncaught and resultantly a similar proportion of what’s left of the British fleet will go bankrupt.

The EU has every incentive to fully enforce such a ban which would cull the UK fleet as under international law (UNCLOS Article 62.2) if a “state does not have the capacity to harvest the entire allowable catch it shall… give other States access to the surplus of the allowable catch”.

The above is not conjecture, the EU also stated this possibility in a previously un-noticed document; Research for PECH Committee -Common Fisheries Policy and BREXIT – June 2017 (page17). The EU is therefore quite aware of the implications and obligations of Article 62.2 and the discard ban.

SLASH UK RESOURCE SHARES

To compound this, HM government has agreed through ARTICLE 125 of the draft agreement that the UK will be subjected to the allocation of fishing resources through the CFP.

Part 4 of Article 125 states;

Without prejudice to article122(1), the relative stability keys for the allocation of fishing opportunities referred to in paragraph 1 of this Article 125 shall be maintained.

Paragraph 1 relates to Article 43(3) TFEU;

The Council, on a proposal from the Commission, shall adopt measures on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities.

Therefore, contrary to government assertions, the EU Commission therefore has sole power to alter the ‘relative stability’ resource shares. These can and have been altered – as happens on a state’s accession – and the EU is free to do so to the UKs detriment. A further skewing of the already disproportionately unfair share the UK receives would exacerbate and compound the discarding and discard ban problem.

12 MILE LIMIT

The EU can also abolish – indeed it may terminate with our current membership – the 12 mile limit which gives protects our inshore and shell-fishermen along with nursery grounds. The 12mile limit was established in Article 100(1) of the UK Treaty of Accession as a 10 year derogation from Article 2 of the CFP founding Regulation 2141/70.

This derogation, although reiterated in subsequent 10 year CFP renewals, ultimately stems from the UKs Treaty of Accession. With the termination of the UKs membership under Article 50, our Accession treaty will ‘cease to apply’ and the EU will be free to abolish the 12mile before its current 10 year period expires in 2023 if this does not happen automatically upon withdrawal.

GOOD FAITH

In addition to this the governments protestation that all will be well is through the assurance that the proposed agreement will be exercised under the provision of “good faith”.

Article 4a – Good faith;

The Parties shall, in full mutual respect and good faith, assist each other in carrying out tasks which flow from this Agreement. They shall take all appropriate measures…..to ensure fulfilment of the obligations arising from this Agreement and shall refrain from any measures which could jeopardise the attainment of the objectives of this Agreement. This Article is without prejudice to the application of Union law pursuant to this Agreement, in particular the principle of sincere cooperation.

Therefore, under draft withdrawal agreement of 19 March, ‘good faith’ far from being an all will be well clause obliges HM Government to rigorously enforce all the terms of the agreement, including our re-obedience to the CFP in its entirety – it is actually a swallow the lot clause.

Consequently, ‘good faith’ means the UK has signed up to a Transition agreement which means fully re-obeying and subjecting our fleet to a fully enforced discard ban and resulting choke species.

Has agreed to follow ‘relative stability’ shares and the ability of the Commission to alter them – possibly to our detriment. The UK will have agreed to re-obey the ‘raw’ CFP of ‘equal access to the baseline’ with the possible abolition of the 12 mile limit derogation with the termination of of our current membership.

The public perceive the transition as rendering all government and MPs commitments, promises and assurances to reclaim British waters as worthless semantics

It imperative for the survival of fishing communities in a multitude of constituencies that there is a reversal on fishing being included in a transition and that all sovereignty and control over all waters and resources within the UK’s EEZ reverts to Westminster at 11pm on 29th March 2019 on this symbolic issue.

In addition to this a clear termination clause similar to Article 50 must be inserted to the transition treaty to ensure that the transition and all rights and obligations accrued under it cease to apply on the 31st December 2020 to avoid any contention.  Failure to do so would be perceived as a tangible demonstration that there is no intention of making a serious stand on fishing or Brexit nor fulfilling “taking back control of our borders” as optimised by this ‘acid test’ of Brexit.

A deep and special fantasy world

Following the return of MPs to Parliament after the Easter Recess, their responses to recent Brexit developments will be closely watched. The lack of anger from Tory MPs thus far has been disappointing. The surrender on fishing in the draft transitional agreement has greatly upset the fishing community. It poses the question as to whether it would be right to sacrifice one of our historic industries even if we did end up with an all-singing, all-dancing deal at the end of 21 months. To destroy our fishing industry for a pure illusion is even worse, but this is what our government seems to be doing.

The “deep and special” relationship between the EU and the UK exists only in the minds of a few UK politicians; it is certainly not how the EU views its future links with a departing member state whose decision to leave the bloc was one of the biggest body blows it has ever faced.

Last week, David Davis announced plans to send “hundreds” of civil servants to Brussels to work on the deal. Within days, a senior EU source announced that this wasn’t going to happen. “There will be no negotiation strands, no ‘hundreds’ of British negotiators,” said an un-named diplomat.  “Trade negotiations will not start properly until after 29 March 2019. Before that we must get the fundamentals right,” the source said.

One important, unresolved issue is the status of Gibraltar, with Michel Barnier indicating that Spain will enjoy strong support from the other EU member states. Spain’s demands include the joint control of Gibraltar’s airport, cross-border cooperation on smuggling and ending what it sees as a tax haven with far lower corporation rates.

Yesterday’s Parliamentary written questions laid bare the depths of unreality which still pervade our government. Steve Baker, the Parliamentary Under-Secretary of State for Exiting the European Union, was anything but clear when questioned by the Labour MP Paul Blomfield. When discussing the transitional priod, he said “The agreement will be underpinned by a duty of good faith and governed by a Joint Committee to ensure it is faithfully and fully implemented by both sides.” As John Ashworth of Fishing for Leave asked, “Since when have the EU run on good faith?” Mr Baker also went on to say, “As we move towards our future partnership with the EU, we will need to discuss how we manage the relationship once we are two separate legal systems.” The legal divergence begins on 29th March 2019, when “the  treaties will cease to apply” to the UK.  There still seems very little idea, from the UK point of view,  how the UK will relate to the EU in the transitional period from a legal point of view. We may keep our laws in step with Brussels but they will have a different legal basis.

Discussions on Brexit in the House of Lords revealed the same sense of muddle. Questioned by Lord Taylor of Warwick, Lord Callinan said, “During the implementation period the UK will be in a continued close association with the EU Customs Union. This will ensure a smooth exit and minimise disruption for businesses. HMRC are confident that they are on track to deliver the functioning customs, VAT and excise regimes the UK will need once it leaves the EU.” It is hard to share HMRC’s confidence, especially as far as the Irish Border issue is concerned.

It is becoming apparent to anyone following these negotiations that the performance of Mrs May and David Davis has been completely pathetic. The EU has walked all over them.  We can but hope that opposition from Brexit-supporting MPs within their party is merely dormant and that they will make it loud and clear that they will not support the proposed arrangements, including the terms for a transitional deal, nor the surrender on fishing nor, indeed, the proposed close military cooperation.  Sooner or later, it will dawn on them that their party will pay heavily for a botched Brexit. it is in everyone’s interest for that moment to arrive as quickly as possible so that there is time to change tack.

 

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