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.

 

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.

Hopefully it’s confusion rather than betrayal

Michael Gove’s comments to Danish fishermen about access to UK waters after Brexit have attracted some adverse criticism. We have not been provided with a full record of his actual words and it is quite likely he has been misquoted. Furthermore, he has only been in the job a few weeks and there is a lot of detail for him to take on board.

The same cannot be said for the Civil Servants of DEFRA, the Department for the Environment, Food and Rural Affairs, who should know better, A statement by one of their spokesman is therefore far more of a cause for concern than Mr Gove’s comments in Denmark. The spokesman said:-

“Leaving the EU means we will take back control of our territorial waters. As we have always said, other countries will be able to access our waters – but for the first time in 50 years it will be on our terms and under our control…..We will allocate quotas on the basis of what is scientifically sustainable, making sure we have a healthy marine environment and profitable fishing industry in the UK.”

The fishing industry has always been concerned that the Government will only allow British vessels the exclusive use of the 12 nautical mile zone – in other words, out territorial waters. This is  what the DEFRA statement has indicated and the recent the Conservative manifesto said the same thing. Taking the DEFRA statement at face value, it would appear that arrangements regarding our Exclusive Economic Zone (EEZ) covering the area from 12 nautical miles up to 200 nautical miles/median line will continue as at present. This means that EU vessels will continue to take around 59% of the British people’s resource and the failed quota system will continue. Is this really what Mr Gove has in mind?

So why did the department use the word “Territorial”?

This is where confusion is creeping in. This doesn’t apply just to fishing but right across the whole range of Brexit-related issues. The public is stating to get restless and are wondering whether those at the top know what they are doing or else fear that they are deceiving us again. This is unhealthy, and proves once again the importance of detail.

Consequentially, Gove, probably for no fault of his own, will be under pressure now not only to explain his own comments but also the actions of his department. The burden on Gove’s shoulders cannot be exaggerated. The survival of the Government  – and indeed, the Conservative party – could rest in his hands. If the EEZ is traded away, then Brexit isn’t Brexit. DEFRA may state, “it will be on our terms and under our control”, but if the existing quota system of the CFP is used, the expected benefits will not materialise. Life after Brexit has to be a success for our fishing industry, not a continuation of the present story of decline.

The confusion stems directly from the DEFRA statement – “As we have always said, other countries will be able to access our water”. There is nothing wrong with these words as all free and independent fishing nations have reciprocal arrangements with their neighbours. Under international Law, UNCLOS3 article 62(2) states that if you haven’t the fishing capacity to take the resource, the amount you can’t catch can be given to your neighbours. The problem here is the civil servants will have advised Gove that we haven’t the capacity, whereas in reality we have.

The confusion centres around this word “Territorial.” UNCLOS3 has different rules for the territorial waters up to 12 nautical miles from the coastline and the Exclusive Economic Zone reaching out to 200 nautical miles/median line zone.

No one is saying that we should throw all EU vessels out on 30th March 2019, but no permanent rights must be given, only temporary transitional rights on a declining annual basis. What is vital, however, is that we need to know whether DEFRA is making the common mistake of using the term “Territorial waters”  when it actually means EEZ or whether it really does mean that we will only control the 12 nautical mile limit.

If so, it would be a shameful betrayal of our fishermen on a par with Fisheries Minister Peter Walker, who told Parliament in January 1983 – “the reality is that if the UK, instead of demanding anything like the historic proportions of Europe’s fish that it had caught, demanded a 200 mile limit and 50% or 60 % of Europe’s fish, that would mean the destruction of the fishing industries of most of our friends and partners in western Europe”.

Unfortunately the attitude that fishermen in other countries come before our own still prevails in some quarters. Thankfully, in Michael Gove, we have a person who has hit the deck running and is prepared to listen and learn. He has already shown in denouncing the London Convention  that he is someone who can and will take action. Ultimately, it is the job of civil servants to implement, not decide policy, so we can but hope that when Mr Gove really has his feet under the table that there will be a change of tone from DEFRA.

The way his Danish visit has been reported in the press will also underline to him how important it is for his department to issue clear, unambiguous statements, leaving no room for confusion over a very delicate subject.

Who will blink first?

Our attention has been drawn to an interesting article which appeared on the Conservative Home website. The author, James Arnell, claims that we in the UK have a different mindset when it comes to negotiations. “In the UK”, he claims, “parties generally start from a position which is more or less reasonable on each side and move together to a deal relatively quickly, seeking to avoid unnecessary escalation up the chain of command.”

The Continental approach is very different:- “Negotiations generally start with almost ridiculously extreme positions on each side….It is not at all unusual for these steps….to be accompanied by walkouts, requiring bosses to get things ‘back on track’. Ultimately, this continental form of negotiation culminates in a relatively rapid final phase of negotiations between the ‘head honchos’, in which, after months or years of painful posturing on both sides, points are traded embarrassingly quickly and a deal is sealed.”

Mr Arnell says that we should really start worrying if the negotiations are going smoothly at this stage as it means that the UK side would have been giving too much away.

The author works for Charterhouse, a private equity firm.  His biographical page on that firm’s website states that he is a barrister who speaks French and German fluently. All things considered, this article on ConHome sounds like it has been written by someone with first-hand experience of the Continental mindset with which David Davis and his team are having to deal during the Brexit negotiations. Maybe this is why not a lot is being given away by the UK government. While such tactics may ultimately turn out to be the best way of getting a favourable deal with the EU, as we have pointed out the lack of the details of any Brexit masterplan is causing concern for a number of business figures who are keen to know in far more detail what the government’s exit plans actually are.

A little extra piece of detail did emerge yesterday morning. According to Open Europe, Theresa May was adamant that even any transitional deal would not involve membership of the Single Market.  “We said we would no longer be members of the single market because we will no longer be members of the European Union.,” she said. Fair enough, but if there is another plan, not only organisations such as the Campaign for an Independent Britain but more importantly, some big names in the business world are straining at the leash for some reassurance.

Some confirmation of Mr Arnell’s analysis of the Continental mindset has surfaced in the shape of a  reference document of the Workshop on “Common Fisheries Policy and BREXIT” held on 21th June 2017, by the European Parliament’s Committee on Fisheries.  Concern has already been voiced about our denunciation of the 1964 London Fisheries Convention, an agreement which pre-dated our joining the EU allowing limited access to vessels from other Western European nations to certain areas of the waters between 6 and 12 nautical miles from our coastline.

As the wording of the original document was vessel-specific and no boats permitted to access our waters in 1964 are likely still to be active, denouncing this Convention could turn out to have been little more than a precautionary measure. The message it conveyed, however, was that the UK is serious about regaining control of all of our waters right up to the 200 nautical mile/median point limit and it was not well received. The response of Geert Bourgeois, the Flemish Prime Minister, was to wave around an ancient charter signed by Charles II in 1666 allowing fifty herring boats from Bruges “eternal rights” to fish in UK waters.  A bit of research showed this action to be nothing more than sabre-rattling. Even nearby Zeebrugge, a far more important fishing port than Bruges these days, could only muster 43 fishing boats in total four years ago.

So it comes as no surprise that the European Parliament is keen to see EU boats continue to plunder our waters. Although trade and fisheries will be handled separately, the report says, “The fact that these issues will be negotiated in separate legal frameworks should not lead to the fragmentation of fisheries issues, which should be addressed in their entirety and together, so as to ensure that the free movement of fishery products is linked to free access to waters and resources and vice versa”. As John Ashworth of Fishing for Leave commented, “The EU will want to tie the whole package together using blackmail on trade” –  In other words,  let us fish in your waters more or less as before or we’ll make it hard for you to sell fisheries products in the EU.

John has studied the issue of historic rights and has concluded that we can take back control of our waters without being open to a legal challenge over this issue. Nonetheless, the European Parliament document says “These historical fishing rights should be taken into account in the negotiations to facilitate preferential access by Member State fleets.” I shan’t repeat his rather forthright comments about this for fear of offending anyone’s sensitivity, but suffice it to say that he is distinctly unimpressed with the reasoning of the European Parliament! As an aside, it is worth pointing out that the European Parliament has a relatively minor role to play in the Brexit process, but its attitude is unlikely to be different from that of other EU institutions.

The bottom line is that if there is no agreement on fishing, the EU will be the clear loser. We would have full control of our waters right up to the 200 nautical mile/median point on Brexit day and no EU vessel would be able to fish anywhere within it. The loss of access to EU waters by our fishermen would be more than compensated by having exclusive access to our own.

This, or course, assumes that Michael Gove does not blink first and give way. The denunciation of the 1964 Convention was a move in the right direction, but the howls of protest from across the Channel are a warning to him that he will need to hold his nerve.

Indeed, it may not just be Mr Gove who needs to take James Arnell’s advice on board. Yanis Varoufakis, the former Greek Finance Minister has written a book called Adults in the Room based on his personal experience of how awkward he found EU officials to be.  On the other hand, while we have the upper hand on fisheries, we certainly don’t when it comes to other important areas of trade. Our negotiators must hold their nerve and not be intimidated, but they know that the mantra “no deal is better than a bad deal” is no more rooted in reality than the prospect of fifty 350-year old herring boats from Bruges suddenly appearing in the Channel demanding their eternal rights to fish in our waters.

Photo by waltercolor

A small step – the denunciation of the 1964 Fisheries Convention at last!

Within a week of taking up his new post as Secretary of State Environment, Food and Rural Affairs, Michael Gove, has finally denounced the London 1964 Fisheries Convention. This is a small and welcome step towards Brexit, but one which should have been done at the same time as Article 50, as both require two years’ notice of termination. It means that unless we get a time extension to the Article 50 process, there will be a 3-month overlap.

The 1964 Convention was an agreement between the UK and some other European countries about fishing rights in each other’s waters. It was disadvantageous to UK fishermen and very beneficial to the French, possibly as a sop to General de Gaulle, who was not at all keen to see us join the European Community, with which we were currently in negotiations with at the time.

There are some grounds for saying it may make little difference as the Convention is vessel-specific and very few, if any, boats mentioned in the 1964 agreement are likely to be commercially active.

Of course, our membership of the EU has superseded it. Michel Barnier tweeted yesterday:-

UK denunciation of London Convention=no change: EU law/Common Fisheries Policy had superseded it. EU 27 interests=my priority for negs

This is a very telling. In one sense, Barnier is correct, as the detail of the Convention was transferred into EU regulation. On Brexit day, however, the regulation ceases to apply, and we revert to previous domestic legislation which, if it had not been denounced today, would have continued the right of access to our 6 to 12 nautical mile limit.

Note again, “EU 27 interests=my priority for negs.” Given that France gained most from the 1964 Convention, in any negotiations for a post-Brexit fishing settlement, you can expect France to demand access rights to fish in UK waters.

So while today’s move has cleared the way for UK control of our waters up to 12 nautical miles from the coast, there is still the question of control of our seas between 12 and 200 nautical miles (or the median point where the sea is less than 400 nautical miles wide). The Great Repeal Bill will repeal the European Communities 1972 Act, but at the same time will repatriate EU law into UK law – in other words, EU legislation will still be on our statute books but will take its authority from Westminster and not Brussels. This means that while Article 50 would take us out of the Common Fisheries Policy, the Great Repeal Bill, unless it excludes fisheries, would more or less take us straight back in again.

The separate Fisheries Bill will counter that, as long as it takes effect at exactly the same time as, or before, the Great Repeal Bill. If there is any overlap, this will result in huge problems of continuity and legal challenges.

As the time ticks away towards 30th March 2019, ministers need to remember the Kent Kirk case. This Danish skipper deliberately fished in UK waters to test the situation when there were uncertainties following the termination of a fisheries agreement without anything being put in its place.

Once we reach the end of the Article 50 period in March 2019, all EU treaties and regulations will cease to apply to the UK, and we revert to our own UK legislation. It is vital to sort out a fisheries policy before then and the timetable is short. Under Article 50, unless there is unanimous agreement among the 27 members to extend the two year period, we have 21 months left to achieve a withdrawal agreement. When you consider all that needs to be done in such a short space of time, it raises the question as to whether this is possible.

The EU is in the driving seat when it comes to determining the terms of withdrawal. The UK can say yes or no and even then, the Council and the European Parliament have a vote. While the EU is obliged by treaty to conclude a deal, it could make life so difficult that the UK either has to submit or say no.

However, circumstances have dealt us a strong hand as far as fisheries is concerned. If there is no fisheries agreement, no EU vessel will be able to fish in our waters. Given the French fishing Industry needs access to UK waters to survive, it will be putting a lot of pressure on the EU’s negotiators to fight hard on its behalf. It is vital that our side does not give in. Gove has thrown down the gauntlet and even today’s action has ruffled a few feathers. He will need to steel himself for a far worse reaction if he is to see this through to the bitter end and reclaim full control out to the 200 nautical mile/median point limit.

(See also this press release from Fishing for Leave)

Fishing the first Brexit bright spot as confusion reigns

Fishing photo

Are we going to leave the Single Market or not? And what about the EU’s customs union? – a subject that never cropped up in the referendum debate last year. Do some politicians even know the difference between the two?

At the moment, we are seeing a great deal of confusion about the future direction of Brexit and for those of us outside Mrs May’s new cabinet, what we are reading in the media is leaving us none the wiser. the quality of press reporting has reached an all-time low, with uninformed speculation given free rein and undue weight placed on off-the-cuff comments.

Take, for instance, headline statements that Emmanuel Macron, France’s new President claimed that “Brexit could be reversed.” What he actually said was “Of course the door remains open, always open until talks come to the end. But it was a sovereign decision taken by the people to come out of the EU.” In other words, there remains a theoretical possibility that the UK government might change its mind, but no more than that.  Given the shock of last week’s General Election result, it is hard to see the any rowing back on Brexit given that the consequences for the Conservatives would be the worst crisis since 1846.

The terms “hard” and “soft” Brexit have been bandied about with very few people knowing what they actually mean.  By and large, the terms relate to a future trading arrangement with “hard” meaning leaving the Single Market (or perhaps the Customs Union, or maybe both??) and “soft” means remaining in one or both. But what about criminal justice or foreign policy? There are “hard and “soft” issues here, which few in the media are picking up.

In all this muddle, one thing is clear. From what we could discern of Mrs May’s Brexit agenda, it contained some worrying and unsatisfactory features, including too close a link with the EU’s military plans and an ongoing commitment to remain party to the European Arrest Warrant. The loss of her majority means that she cannot force through her plans for Brexit if they are widely seen as flawed. Indeed, it is possible that we could end up with a better Brexit deal, given that pressure groups and their supporters on the Tory back benches will have a lot more leverage than if we had ended up with a thumping Conservative majority.

In one particular policy area, fishing, we are already seeing evidence of this. Scotland was the one piece of good news for the Conservatives in an otherwise dismal result and several of the seats they won from the SNP include fishing communities. Ruth Davidson, the Scottish Conservative leader, campaigned strongly on the fisheries issue and has apparently spoken to Theresa May, insisting that the UK must leave the Common Fisheries Policy and manage its own waters right up to the 200 Nautical Mile/Median Point limit.

Given that Michael Gove, who has recently been appointed Secretary of State for Environment, Food and Rural Affairs , is the son of a man who worked in the fishing industry, there is every reason for being hopeful that the sensible post-Brexit fishing policy proposed by Fishing for Leave has a greater chance of being implemented.

So, amidst the current confusion, we are perhaps seeing the first bright light. As the dust settles, hopefully others will follow