The European Union (Withdrawal) Bill 3:- fisheries shows the need for exemptions

The European Union (Withdrawal) Bill was designed to ensure that life continues as normal the day we leave the EU.  In an earlier post, we explained the rationale behind this bill. While Labour in particular is concerned about the “repatriated” legislation being tweaked for political ends, a far more serious problem concerns legislation which will need tweaking because of the new status of the UK as an independent sovereign nation outside the EU. Indeed, the degree of tweaking required for some legislation which does not concern merely domestic issues is so great that we believe that it is best that there should be exemptions included in the Great Repeal Bill – in other words, replacement legislation should come into force on Brexit day and the regulation, decision or directive  in question should not be put onto the statute books at all.

Regulation 1380/2013 is the main piece of EU legislation which governs the Common Fisheries Policy. Leaving the EU will free us from this iniquitous, environmentally damaging piece of legislation which has wrought havoc to our fishing industry.  All we have to do is exempt this one single Regulation from the EU (Withdrawal) Bill and our fishermen will be freed from control by Brussels. Even if no agreement on fishing is signed by Brexit day, this would be better than the current set-up. We would find ourselves excluded from EU waters, but the exclusion of EU vessels from our Exclusive Economic Zone (up to 200 nautical miles from the shoreline, or the median point where the sea is less than 400 nautical miles wide) would be more than a compensation.

In other words, unlike customs arrangements, trade in goods and services or mutual recognition of standards, fisheries is one area where we really don’t have to worry if there is no agreement with the EU by 29th March 2019. We would revert to UN guidelines which would allow us to manage our own waters.

So the current plans by the government to include Regulation 1380/2013 make no sense whatsoever – all the more when analysis of the actual document shows that a massive re-write would be needed before it could be incorporated into UK law or else a tremendous muddle would ensue. You only have to go as far as paragraph (2) on the first page before encountering the terms “Union waters” and “Union fishing vessels.” At the moment, these terms refer to the boats and EEZs of all EU28 countries – at least, all those which have a coastline and therefore a maritime fishing industry. On Brexit day, the term will mean something different as phrase containing the word “Union” will refer to EU27 – in other words, not the UK.

Read on to paragraphs (3) and (4) on the same page and they talk about the objectives of the Common Fisheries Policy. Unless the government wants us to be in the CFP even though we will be out of the EU, these two paragraphs can be struck through as irrelevant.

Paragraph (5) begins by mentioning “the Union”. Well, we happen to be a signatory to the same UN agreement, so perhaps our Civil Servants can just cross this out and put in “the UK” instead. Sadly, it’s not that simple. Read on a few lines and you come across a reference to a decision by the EU Council. That doesn’t apply to us any more so that needs to be changed.

Given the document is 40 pages long, I won’t bore you with going through the other pages in detail, but the absurdity of repatriating this Regulation must already be apparent. Every reference to “union”, “member states” “Commission” and so on will need alteration. Why bother with a piece of legislation which is so flawed? Scroll through it in its entirety and there are numerous references to quotas. UK fishermen do not want a quota system on independence. Our booklet Seizing the Moment,written by John Ashworth of Fishing for Leave proposes a “days-at-sea” basis, modelled on Faeroese practise, which is far better than any quota system for preventing discards, while at the same time enables a much better management of the environment.

Three further objections to the incorporation of this Regulation into the EU (Withdrawal) Bill should, however, be mentioned. Firstly, the final 12 pages comprise an annex listing the access to coastal waters by different member states. This obviously includes the UK’s territorial waters which the Government indicated it intended to return to UK control by denouncing the 1964 London Convention.  If these pages are included, then the good done by doing this is essentially undone and the government would have broken a promise.

Secondly, this Regulation is the latest of a series of regulations enshrining the UK’s 10-year derogration restricting access to the waters up to 12 nautical miles from the shore, which currently expires on 31st December 2022. If the Regulation is included in UK law featuring any wording implying that restricting access to any part of the waters around the UK is subject to agreement with Brussels, then we have in effect granted the EU a right to continue dictating who may or may not fish in our waters. This is unacceptable.

Finally, if anything resembling Regulation 1380/2013 ends up on the UK statute books after Brexit, even if it has been heavily amended, it will be scrutinised in minute detail by, among others, the French, who will seek to find any opportunity they can to take us to an international court and challenge our decision to repatriate our fishing policy.  Given that so much of this document needs to be deleted or amended to make any sense and that there is plenty of scope for ambiguity creeping in, the threat of a legal challenge adds still further to the reasons for saying that excluding it from the EU (Withdrawal) Bill in its entirety is the only sensible approach to take. Fishing for Leave has the expertise to devise a fishing policy in 18 months – one which will revitalise our coastal communities after years of decline. If even a heavily amended version of this Regulation finds its way onto the UK statute books, it will not be truly Brexit for an industry that has campaigned so long for the return of fisheries to UK control. Given the appalling way in which previous Conservative governments have betrayed our fishermen, this present administration must not be allowed to bungle this great opportunity to right an historic wrong. Thankfully, one Conservative MP has already flagged up the potential problems a bungled fisheries Brexit would cause. We can but hope his colleagues will take heed.

 

Clash of cultures – the root of our Brexit difficulties

Can the conflicting opinions on the EU’s intentions in the Brexit negotiations be reconciled? In my hearing, a staunch Brexit supporter recently referred to Michel Barnier as a “reasonable man” whereas  I have read numerous comments from people convinced that the EU wants to punish us and will deliberately be as unreasonable as possible. Who is correct?

It cannot be denied that Brits and Continentals do seem to have a different mindset when it comes to negotiations. Our attention was recently drawn to an interesting article on this subject on the Conservative Home website by James Arnell, a lawyer with some experience of negotiating with people from European countries. He claimed that such people begin with unreasonable demands and only at the last minute does a deal emerge.

Fair enough, but this does not get to the heart of the conundrum. The fundamental problem is that many of us don’t understand the difference in culture between our country and the majority of the other member states.

It goes back centuries, possibly longer. Essentially, our Common Law legal system bequeathed to us a love of liberty and flexibility. We don’t like everything to be rigidly codified and prefer laws to which we can adhere to in spirit rather than obeying to the letter. Such a mindset is as inevitable outworking of Common Law with its insistence on equality and inalienable rights.

Across the water, the two most influential figures in the development of law were the Byzantine emperor Justinian (d.565) and Napoleon. Their legal systems, which form the basis of  most of the law codes in Europe, were very top-down. Freedoms were conditional and the concept of everyone being equal before the law was unknown.

The EU’s approach to lawmaking is very much in that tradition and like all such systems, tends to be very exact and very bureaucratic. It will legislate in great detail in areas where an independent UK would not have been so precise or perhaps, not bothered at all. We may have laughed at the cuddly toy sheep depicted in Regulation 1462/2006, but it graphically illustrates the difference in approach which has been one of the biggest problems facing our politicians and civil servants since 1973 and which lies at the root of the lack of progress with the Brexit talks.

Very few UK politicians have appreciated the difference in mindset between ourselves and the rest of the EU – even those who have supported our membership. On one occasion, Sir John Major was taken to one side by Helmut Kohl, the former German Chancellor, and told to go home and read the treaties as he clearly had never done so.

This mindset manifests itself in various other ways, some mildly amusing, others frustrating. The Civil Service did not always find it easy to convert EU directives into UK law and often ended up “gold-plating”  – in other words, interpreting them in an excessively strict manner. A German motorist was once apprehended by the police for driving his Porsche at well over 100mph on a UK motorway. His excuse was that the 70mph limit did not seem to apply as so many other cars were going faster. In other words, he could not get his head round the concept of obeying the spirit but not the letter of the law – a guideline rather than something always enforced to the letter.

The different legal status of a UK policeman compared with a Continental Gendarme is another aspect of the same clash of mindsets. As Christopher Gill, one of the former “Maastricht Rebel” Conservative MPs explains,

“The tradition of British policing has been to protect individuals and their property from criminal activity and to apprehend those who transgress whereas on the continent police act almost like an army of occupation, responsible for public order enforcement, crowd control and generally buttressing the authority of the civil state as opposed to defending the freedom of the individual citizen”.

On a personal note, I can recall during my time working in Brussels how often colleagues used to moan about Belgian bureaucracy. The amount of form-filling required to register for residence or to let the authorities know that you worked for the EU and were thus covered by different tax arrangements was quite staggering. Yet it didn’t seem to bother the Belgians that their taxes were being used to pay the salaries of some public sector workers whose sole occupation seemed to be to stamp forms!

When we joined the EU, however, whether our politicians understood it or not – and most of them almost certainly didn’t – we agreed to play by their rules and in leaving the EU, it is exactly the same. Under Article 50, we have two options – to come to an agreement or leave without one. As M. Barnier has pointed out, it was our decision to leave. If, therefore, we want to leave by the EU’s approved route, our exit negotiations have to be conducted according to EU rules which limit the scope for flexibility. The EU in other words will not be flexible because it CANNOT be flexible in some areas where our ministers would like a bit of “give and take”.

For instance, Liam Fox’s claim that an EU-UK trade deal would be “the easiest in history” because we are beginning with zero tariffs and maximum regulatory convergence fails to take into account the simple fact that under EU rules, we become a “third country” on independence and the treaties cease to apply. Whatever the levels of convergence, in March 2019 our entire current relationship with the EU will be no more and any new trading arrangements will need to be put together on a totally different basis.  The EU can’t bend the rules for us, whether it wants to or not.

This clash of cultures shows why it was right to vote to leave last year. It also explains why we are likely to prosper once we have left, even though when it comes to international trade, we will still be subject to any regulation originating with global bodies. David Davis’ “sunlit uplands” are therefore not a total fantasy, but we’ve got to get there first! We will only do so if our negotiating team fully get to grips with the nature of the organisation we are trying to leave. It may be boring, tedious stuff, but if we are to leave smoothly, there is an urgent need for Civil Servants and politicians alike to heed the advice which John Major never took – Go and read the treaties!

 

 

Photo by archer10 (Dennis) 100M Views

Britain needs to play it smarter

There is some chatter on the web as to whether Brexit can be parked. Personally I don’t see that happening. Call it a hunch but I think the process has taken on a life of its own independent of the politicians and they lack the coherence to influence it in either direction. I can, however, see Brexit transmogrifying into something that is neither Brexit nor EU membership.

The repeal bill process is not an afternoon at the photocopier. It’s a major feat of legal engineering and it is going to take years. We can pass certain bills that technically mean we have left but the Brexit limbo could be of such a composition where making the final switchover in various sectors, ending EU supremacy, would be viewed as so destructive that it would go into some sort of review, much like TTIP has, where it exists as a concept but it’s not actually going anywhere until it’s taken off the shelf and dusted down.

We have heard much about the possibility of an accidental Brexit where we crash out without a deal, but there is also a possibility of “accidental remain” where our lack of direction and inability to agree on anything leaves it hanging in the wind.

The only way I see to avoid this fate is for the government to face the reality that the EEA is the fastest and most practical means of leaving the EU. It doesn’t matter if the EEA is suboptimal. It has the singular merit of being out of the EU.

We can quibble until the end of time over the various compromises the UK would have to make but since the advent of the WTO agreement on Technical Barriers to Trade there is little likelihood of reaching that elusive regulatory sovereignty. That issue we can address later. To my mind it is secondary to ending EU political union.

If we do not want to drift into a Brexit limbo then we need to see some decisive action from the government. All we are seeing right now is dithering, pretending it’s all there for the taking when what we’re actually doing is reinventing the wheel – and a poor copy at that.

The basic mistake is the belief that the Brexit process itself is the opportunity to do everything all at once. This is a classic misnomer. If anything the Article 50 process is a lengthy admin chore we must go through before we can start looking at systemic reforms. The only safe and sensible way to leave is by reverse engineering our membership and that means the first step has to be quite close to EU membership. It wouldn’t even matter if post-Brexit absolutely nothing had changed. What matters is that, having completed Article 50, we would have the power to start changing things on our own schedule.

This is the bit where us leavers need to get real. All of us have a strong dislike of the EU, but we cannot say that everything about economic integration is bad. What matters is that we preserve what is worth keeping and build on it. It would be a grave mistake to sacrifice any European trade in the belief that trading with the rest of the world will compensate. It really won’t.

That though, is going to require some adaptation to our ideas. Like it or not, the EU has us over a barrel. As the regional regulatory superpower it does call the shots, and since the EU has a number of other countries hooked into regulatory harmonisation by way of FTAs we are going to find the wiggle room for an independent UK régime will be next to nil.

Ultimately we are going to have to change our attitude to the EU in order to make a success of it. The hostile and confrontational tone is not doing us any good and it’s dangerous because we will need the EU’s extensive assistance in borrowing their third party cooperation agreements and trade deals. Secondly, since we won’t be going all out for regulatory sovereignty, our trade policy will have to be a collaborative and complementary policy to that of the EU.

As we have seen the EU likes to get bogged down in deep and comprehensive bundled deals which take a number of years and very often get tied up in technical detail at the last minute over soft cheeses or formaldehyde content in furniture. Despite this method causing a number of hang-ups for CETA and the demise of TTIP, they don’t seem to have learned. There are other ways.

What we can do is look at effects based trade policy. As a foreign policy objective we want to reduce the push factors that drive migration. In order to do that we need to get the poorest countries trading. We are told by Suella Fernandes that Brexit means we can reduce tariffs for Lesser Developed Countries. This fails on three counts in that for a long time the UK will maintain the existing tariff schedules, LDC’s already have tariff free access under the Anything But Arms agreement – and finally, it’s non-tariff barriers which stand in the way.

Ultimately LDCs struggle to meet stringent standards. Jacob Rees-Mogg and the likes would have it that we can trade away our safety standards but that invites a deluge of counterfeit and dangerous goods. Consumers won’t wear it. Our mission is to use our aid budget for technical assistance to ensure that they can meet regulatory requirements for export. Not only does that improve their ability to trade with the UK it gives them access to the European market as well.

Effectively we would be improving access to the single market for everyone. The benefit to us is the eventual slowdown in migration but also more trade means more opportunities for UK fintech and business services. Something our economy is geared toward in ways that France and Germany are not.

By acting in this way we have no real need to get bogged down in comprehensive bilateral talks as the EU does. What matters is we are enabling trade and paving the way for the EU to forge deals, to which we can be a party. Sector by sector we can improve the viability of African trade at a speed the EU is incapable of.

As much as this approach is in the cooperative spirit, little by little it removes the EU’s excuses for excluding poorer countries and in so doing we make allies and friends with countries with whom we cooperate. From there we can forge sectoral alliances to further pressure the EU into liberalisation and perhaps changing its stagnant trade practices.

All of this is quite futile though if we maintain an adversarial attitude to the EU. If we leave the single market we actually surrender an ace in the hole for our trade strategy while also losing the opportunity to expand and enhance it – and wrest it out of EU control. Moving entirely out of the EU sphere leaves us hobbled in Europe and pecking at scraps elsewhere.

I wish I could report otherwise but it’s time eurosceptics faced facts. The world got complicated while we were in our EU slumber. The beast we helped create is a power in its own right with its own gravitational pull. What is done cannot be undone. What we can do is leverage our position as an agile free trading country to strengthen the global rules based system and drag the EU out of its protectionist instincts. If we can do that we solve a number of problems not only for the UK but Europe as a whole.

Photo by (Mick Baker)rooster

Brexit is not enough

Being a realistic leaver is a difficult line to walk. Some think Brexit is a matter of crisis management. Others think it’s an opportunity to be grasped. I think it is both. In this I really don’t think it helpful to pretend Brexit is a walk in the park but it certainly isn’t a catastrophe either. As much as I have to keep making the case for an orderly withdrawal, I have to keep making the case for leaving.

This week I have seen a number of well-argued pieces that Brexit should be called off merely because it’s too expensive for the marginal gains we might make. Again I find myself pointing out that Brexit is not an economic proposition. This is really a matter of individual conscience as to whether you want Britain to be part of a country called Europe. I really don’t for a whole host of reasons.

It is these issues we need to be more vocal about. Remainers tend to view Brexit as an entirely transactional issue with a price tag and that is the only measure of it. We are still not seeing any principled cases presented for full economic and political union. This week presents an ideal opportunity to restate why we don’t want that.

Presently, negotiations are centred around the matter of citizens’ rights. In all the online debates I’ve had this is reduced to just the perks and entitlements dressed up as rights when in fact the very concept of EU citizenship is an extension of EU imperialism and an intolerable incursion on our democracy.

In purely economic terms, free movement of goods, services and people can be achieved by means other than political union. There is every reason to argue for a status that closely matches single market membership, but to extend the concept of EU citizenship is to grant supreme authority to the EU to legislate on matters that pertain to our identity, values and our somewhat unique cultural constitution. These are not irrelevant superstitions of little Englanders. These are major constitutional issues.

While we are told that the EU does not legislate directly in many of these matters, that is not true. Moreover it can “recommend” that we adopt international conventions on things like labour rights – and it can issue directives which form the parameters our policies must follow. These are the invisible goalposts that constrain democracy. As bad as that is, we are finding that ever more regulation pertaining to social issues is touched on by modern trade agreements – and that spells less control in the future.

In this the modern left has an aversion to democracy and sees no real problem with democracy being constrained as the EU is largely a benign technocracy which, in their eyes, curbs the excesses of Tories. What we eurosceptics know, of course, is that the road to hell is paved with good intentions and all too often the law of unintended consequences will inevitably make manageable problems worse.

What makes this difficult to argue is the overall lack of domestic competence and presently a lack of will to diverge significantly from the rights and entitlements we have already established – thus rendering our new-found abilities somewhat inert. Many of the stated advantages of Brexit are only theoretical or conceptual – so they ask why go to all the bother now?

That is a question I often find difficult to argue because most Brits tend to be quite utilitarian about such things. Most people will ask how it directly affects them – and in most instances, the effects of EU policy are insidious, difficult to prove and Brexit is not necessarily a remedy.

The point, however, is that the EU depends on this slovenly utilitarianism to advance its own agenda. A gradual salami slicing of powers may not make much immediate impact but now we are leaving we can see the enormity of precisely what has been handed over while we were sleeping. The point of Brexit is to get out before we reach that point of no return.

Some argue that we are long past that point of no return which is why we shouldn’t bother. Arguably they are half right. What is done is not easily undone – but not actually impossible. We would have saved ourselves a lot of hassle and expense by getting out sooner but the fact is we didn’t because our establishment colluded to deny us having a say in the matter. If there is now a cost then the blame lies squarely with those who did this to us in the first place – not the Brexiteers. This is the price we pay for correcting their mistake.

Ultimately the power that MPs exercise is power held in trust on our behalf. That is the basis of representative democracy. The power is not theirs to give away thus it becomes a matter of necessity that representative democracy is suspended in favour of plebiscite to return those powers. That is why we fought for a referendum. Our trust has been abused and power has been given away by deception.

That though, is not enough for us. Even now we see that die-hard remainers are chomping at the bit for parliament to reassert its supremacy and override the mandate of the referendum. This is why Brexit alone is insufficient. The last four decades have proven that representative democracy as a concept is insufficient democracy – if we can even call it democracy at all. It is clear that we need a revised constitution to ensure they never do this to us again.

A year ago we achieved what many of us have worked tirelessly toward for a very long time. The temptation now is to shut up shop thinking we have achieved our goal. We would point out that we are nowhere close to having completed the task. Leaving the EU is largely an administrative chore. We now face a decades-long campaign to reshape and revitalise our democracy and put the people in control rather than the wastrels and frauds in Westminster. If the power we have fought so hard to return remains in the hands on Westminster then we cannot say that we have taken back control. London has proved time and again that it cannot be trusted with the power that belongs to us.

Fisheries Part 3 – There must be no attempt to create a Mark 2 CFP on independence

Many of my fisheries articles have looked back at previous events, but if HMG produces the correct policy, we can finally start to look forward.

In the last article, we pointed out how the Treaties shall cease to apply, taking the Regulations with them. Regulation 170/83 started the EU quota, based on tonnage per species, including the distribution keys to the various Member States, known as relative stability. This cancerous Regulation has now been superseded by another equally dreadful one – Regulation 1380./2013.

The EU’s quota system, like the CFP as a whole, was nothing more than a political tool designed to speed up the drive towards integration. Given that it is widely acknowledged to have been an environmental and economic disaster, it may seem incredible that, with the prospect of an escape from this project now on the horizon, some people are lobbying for the UK to create a sort of Mark 2 CFP on independence, allowing EU vessels the same or slightly less access to British waters as present. Such an outcome would not be Brexit and would continue to be an environmental disaster.

Any sort of shadow CFP must be opposed because the quota system is so unworkable. It has ended up criminalising all EU fishermen, as they have all had to cheat in order to survive. The cheating goes back a long way. It began with falsifying records of how much of which species were caught and where.

Misreporting the species of fish which were being caught and the area in which a given boat was fishing resulted in wrong scientific data and an inaccurate basis on which to determine future quota.

Then there are the unauthorised, so called “black fish” landings. If fishermen have exceeded their quota, they either have to land fish surreptitiously or throw them back in the sea. The authorities have long recognised there is a problem with the CFP, but their attempts to close the loopholes by tightening regulation has only made matters worse. The latest controversy has been the introduction of an unworkable discard ban which, in practise, has not stopped the destruction of thousands of tons of marketable fish. No one knows exactly how much is still being discarded.

It is possible to design gear to separate species, although not to the level necessary fully to prevent discarding. At least this gear does ensure that what is deliberately allowed to escape survives. However, the discard regulations are so complex that not even the fisheries officers are fully conversant with how the rules apply in different areas.

When you are given a quota by weight per species, you end up destroying other species in the process of trying to catch those final few fish, while at the same time prolonging fishing time. For the unique mixed fishing environment found in UK waters, home to approximately 30 different species of fish, you could not have devised a more destructive method of managing fisheries than the discard regulations included in the CFP.

I was the first person to highlight discarding, back in 1988, when I used to write a fortnightly column in the fishing press. Now, 28 years on, we now have a discard ban which looks good on paper, but it is still happening out at sea thanks to the unworkable EU system of quota. I made the discard calculations then on the basis of what I had seen myself when working on board a number of trawlers. Unfortunately, the EU’s current discard rules were written by people who are committed to pursuing an integrationist agenda and who have never been out at sea or understood the difficulties which fishermen are facing.

Of course, an independent UK will need some sort of fisheries management system and we will look at this in more detail in part 4, but it would be crazy to copy a system which is rotten in the core – one that never has, and never will, work in our mixed fishery. Unfortunately, pressure is being applied to do just this – to roll over and give the British people’s resource away again. There are far too many people talking about just negotiating a share of our own resource – in other words, allowing a sort of CFP to continue with the rest of the resource being shared out among the present EU members. To start discussions on that basis is capitulation.

Why is anyone supporting anything even remotely resembling the CFP? Simply because some within the Industry want to keep the status quo in the aftermath of Brexit in order to protect their interests. They have invested millions of pounds in purchasing quota, turning quota into a saleable commodity, for which, if the CFP were to be scrapped, they would have no legal entitlement. With a certain bank having invested heavily in purchasing quota, it and other beneficiaries are creating a great deal of pressure for the UK to create a sort of Mark 2 CFP on independence, allowing EU vessels the same or slightly less access to British waters as present.

Let us be clear on this:- such pressures must be resisted and a policy of procrastination is perfectly sufficient.  Our negotiators need only sit the two years out, do absolutely nothing and wait. As proven by the Kent Kirk case, which we considered in the previous article, if there is no agreement by the end of the two-year period stipulated under Article 50, fisheries reverts to national control. In other words, it becomes our national resource and the other EU countries will have no quota whatsoever unless we offer it to them. Once our negotiators appreciate how strong a hand this deals us, it will be the EU that will be desperate to negotiate with us, not the other way round.

In a future article, I will list the tonnage and value of the catch which EU vessels currently take out of British waters without giving us anything in return. I will also show how much of this freebie we provide them is then sold back to us. The figures will come as something of a shock.

It is ironic that one of the objectives of the EU project was to create a sense of unity among the peoples of European. The CFP has had the opposite effect, causing resentment and nationalism. It would be great to get back to the earlier situation when fishermen were seaman first and foremost, and nationality didn’t matter, but then to understand this camaraderie, you have to have spent time out there at sea, something most EU officials would never dream of doing.

Five more monographs on Brexit from the Leave Alliance

The Leave Alliance, of which the Campaign for an Independent Britain is a member, has produced five further monographs on the subject of Brexit.

They can be downloaded here:-

Post-Brexit regulation

Trade agreements

WTO Schedules and Concessions

A European Economic Space

Liechtenstein reprised

Alternatively, a full list of monographs can be found on this page of the Leave Alliance website.

All are well worth reading, setting out some of the issues we will need to face when negotiating our exit from the EU.