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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What is really going on? Stepping outside the media bubble.

If you are Brexit supporter fed up with all the muddle emanating from the media, a press release from the European Commission is hardly the obvious place to turn for clarity.

A recent communication, entitled “State of play of Article 50 negotiations with the United Kingdom” nonetheless does help to clear some of the fog surrounding the current state of play with Brexit. In particular,  it offers some welcome clarification over the debate as to whether Article 50 is reversible. “It was the decision of the United Kingdom to trigger Article 50. But once triggered, it cannot be unilaterally reversed. Article 50 does not provide for the unilateral withdrawal of the notification.”

In other words, pulling back from Article 50 would require the agreement of both the EU and the UK government. This isn’t on the cards, whatever Vince Cable may be saying. It also provides clarification about life after Brexit. The UK will become a “third country” on 29th March 2019 and if there is no agreement between the UK and the EU by then, we will be reliant on WTO rules for trade.

This looks unlikely. It is almost certain that there will be some form of agreement, but whether it will be sufficiently comprehensive to cover all areas of trade, including non-tariff barriers, remains to be seen. Essentially, the options for both us and the EU are for us to crash out of the EU or to come up with an agreement which has been signed off by the UK government, the European Council and the European Parliament. A qualified majority is required in the Council and no mention is made of the need for parliaments in the member  states to endorse the agreement. Significantly, the institution which produced this document, the European Commission, will not be involved in the sign-off at all.

A new mindset in the Civil Service?

Another interesting article to be brought to our attention is this piece from the Civil Service blog. It mentions the Department for Exiting the EU, or DExEU, a new department created specifically to handle Brexit. So far, 450 staff have been taken on and there are plans to recruit a further 400 during the course of this financial year.  Another new Department, the Department for International Trade, has grown to 3,200 staff. The blog is very complimentary about the quality of work achieved so far by DExEU. “Within days of its establishment – from a standing start – DExEU was delivering policy analysis and advice of the highest quality to the new ministerial team.” One has to say that if the policy analysis and advice was of such a high quality, it is a pity that, judging by some of the ministerial announcements in recent months,  it seems to have been ignored!

The blog’s author, Sir Jeremy Heywood, acknowledges something which we believe to be self-evident but which again, does not seem to be reflected in some of the statements we have heard from the Government:- “This is probably the biggest and most complex challenge the Civil Service has faced in our peacetime history.” On 29th March 2019, for the first time in over 46 years, the buck will stop with Westminster and Whitehall. There will be no Brussels to blame if things go wrong. Our elected representatives and the Civil Service will be fully responsible for running the country and will no longer spend some – or in some cases, most – of their time enacting legislation agreed by the EU. This truly requires a different mindset and we can but hope  that the very upbeat tone of this blog is soon reflected in the actions of government departments, including preparing businesses for the changes which lie ahead.

The Great Repeal Bill

Returning to the Commission’s article, it points out that on 29th March 2019, the EU treaties will cease to apply to the UK. All legislation put onto our statute books which originates with the EU derives its authority from the treaties, so would be rendered null and void on Brexit day.

Due to the impossibility of replacing 46 years of EU laws with domestic legislation in such a short timescale, EU legislation needs to be “repatriated” – in other words, retained on the statute books but with the authority no longer derived from the EU treaties but from the UK Parliament. The European Union (Withdrawal) Bill, as the Great Repeal Bill is more correctly known, has now been published. It is a full 66 pages long and covers both the European Communities Act of 1972, which will be repealed on Brexit day, and the incorporation of EU law into UK law. The EU’s Charter of Fundamental Rights is not to be brought across, although no mention is made of exempting fisheries legislation, which will be covered by another bill – at least, that was the plan in the Queen’s speech.

It affirms our independence from the European courts and also provides some general guidelines for changes that will need to be made to the appropriate items of legislation to reflect the fact that their authority is no longer derived from the EU. It also confers powers on Ministers to use secondary legislation to amend provisions as they are transposed, although the amount of re-writing which will actually be required goes way beyond the guidelines in this Bill. Completing the necessary changes by March 2019 is going to be a major challenge whatever,

Our proposed withdrawal from the Euratom treaty, which provoked a storm in a teacup, is confirmed under the general guidelines for changes, as is the withdrawal from the EEA agreement, which does pose the question as to the nature of any transitional arrangement for EU-UK trade.

The bill for triggering Article 50 went through Parliament without amendment. The progress of this much longer bill is not likely to be straightforward, but of one thing we can be sure:- much of the mainstream media is likely to be providing us with a very unreliable guide on its progress.

Photo by RNW.org

“Glory to God in the highest, and on earth peace, good will toward men.”

So said the angels when they announced the birth of our Lord to the shepherds on the hills outside Bethlehem over 2,000 years ago. And in that spirit at this festive time of year I thought I should break off from the more angst-ridden feelings I might have and instead offer some well-meant advice, whether the recipients want it or not.

The truth is that over the past few days, I’ve come to the conclusion that I am mightily glad that I am not a Supreme Court Judge. Having watched some of the proceedings earlier this month and read some of the submissions (not all I will admit), it is clear to me that the issues with which they are asked to grapple are complex indeed. Complex enough to give anyone indigestion over their Xmas pud.

Now to me the overall issues are quite straightforward. Governments have routinely agreed to European Union (and before that EEC) treaties using the royal prerogative, so I can see no good reason why they cannot repeal those same treaties in the same way.

No doubt the devil is in the detail. Which is how all those highly paid lawyers make such a fat living, and good luck to them.

No, the advice I wish to give is more about presentation than about content. We all know that the law needs to be applied impartially, without fear or favour and that justice needs to be seen to be done. On such a highly fraught issues as triggering Article 50 this is going to be difficult.

There is undoubtedly a worry, perhaps even a fear, abroad that the wealthy, well connected elites who want us to stay in the European Union are going to use their wealth and connections to try to achieve those ends. If the judges are going to have their ruling accepted they need to lay that ghost to rest.

It was for this reason that I thought it a shame that all the judges are sitting on this case. It is usual for only some of the judges to sit on a case. That would have been quite in order and would have raised little or no comment. But instead we have all of them sitting – including two about whom questions have been raised. That alone smacks of sticking two fingers up to the concerned members of the public and is not a good start.

When the judgment comes I would suggest that it should be written in clear and precise English. If there are any precedents, they need to be explained. If there is any legal jargon, that needs to be explained. This document is going to be pored over by far more people than normally read legal judgments, Many of those folks, like me, are not lawyers and may struggle to understand fully complex legal jargon. If justice is to be seen to be done, this judgment will need to be delivered in plain English.

Having looked at some other cases relating to the EU, that in itself is going to be a difficult and demanding job. But if it is not done that way then whichever side loses may well feel that they have somehow been hoodwinked by clever lawyers, and that is not going to help anyone.

Merry Christmas!

Fisheries Part 9:- Repairing the damage requires careful planning

To recap: Some politicians knew right from the start that the CFP amounted to a betrayal of our fishermen

When National Fishery limits were extended from the 3 nautical mile limit to 12 and then 200/median line in the 1960s and 1970s, British boats which formerly fished far away from the UK found themselves squeezed out of their traditional grounds from the Grands Banks, Greenland, Iceland, Norway and Russia. The middle water fleet likewise found itself excluded from Faroese waters.

Under normal circumstances, our fishermen would have been compensated for this loss of access by being given exclusive rights to our new UK Exclusive Economic Zone (EEZ) of 200 miles/median line. Instead, however, the Westminster Parliament decided to give the people’s resource away. They blocked that option and instead of supporting our own industry, preferred to let the fishing fleets of other EU member states catch most of the fish in what are our waters. Now, a visit to many fishing ports around the UK coast will reveal all too clearly the devastation and decline this policy has caused.

John Silkin, the Labour Fisheries Minister did all he could in 1977-8 to try and obtain a British exclusive 50 nautical mile zone, but as he stated in a House of Commons statement on 19th. January 1978, “There was considerable opposition to my demands on this question on the basis that they were contrary to the Treaty of Accession”.

How often have we heard that? “Go and read the Treaties!” It will be a huge relief when Article 50 is finally invoked, as two years later the EU Treaties will cease to apply to the UK.

Five years later on 25th January 1983, Regulation 170/83 had just come into force, which introduced the percentage share out of all individual species, known in the trade as “Relative Stability”, which the Conservative Government of Margaret Thatcher hailed a great success. Six days later, however, Peter Walker, the fisheries minister, painted a different picture:- “The reality is that if the United Kingdom, instead of demanding anything like the historic proportion of Europe’s fish that it had caught, demanded a 200-mile limit and 50 per cent. or 60 per cent. of Europe’s fish, that would mean the massive destruction of the fishing industries of most of our friends and partners in western Europe.”

In other words, it was anything but a success for our fishermen, although wonderful news for the fleets of other EU member states.

As has been pointed out before in these articles, the quota system was part of the political integrationist agenda. The commitment to the creation of an United States of Europe was far more important that introducing a fisheries policy built on sensible conservation practise. Each member state was given a quota for each species which the National Governments then distributed among their own fleet.

Why, however, did our government allow our allocation to gain a monetary value? Goodness knows, unless they knew that such action would end up with the allocated resource coming into the hands of a favoured few – including foreign hands – and thus getting rid of British vessels in order to comply with our Treaty obligations.

Non-EU quota based systems are not the answer  

Brexit provides us with an historic opportunity to repair the damage which EU membership has done to our fishing industry. Recently, a number of well-intentioned articles and reports have been published on this subject, written by persons with no sea-going fishing experience. The net result has been a number of proposals which, sadly, are of little if any value.

For instance, knowing that Iceland and Norway are not in the EU and have large fishing fleets, some pieces are proposing that an independent UK uses their fisheries management system as a template. Unfortunately, their assumption that a non-EU country would automatically operate a better fisheries management system has proved misplaced. Both Norway and Iceland operate quota systems and thus their fishing industry has suffered similar social consequences – small family businesses have been forced out of the profession, affecting entire coastal communities.

Statistical and factual confusion

This is not the only mistake in some fisheries proposals. The Adam Smith Institute made a mistake in its fisheries proposal with the chronology of the introduction to the 200 mile/median point zone.

Statistics is another area which also needs to be handled carefully. Lumping all the sectors of the fishing industry together is confusing, as within a single heading are several different sectors, from small boats operating near the shore to large deep-water trawlers using different methods of fishing.

So, to take the 2015 Eurostat statistics on overall vessel tonnage, Spain is shown as having double the tonnage of both France and ourselves, whereas statistics based on overall engine power of the total fleet shows Spain and ourselves having only 75% the engine power of the French fleet. This is because different vessels of different horsepower are used for different types of fishing.

Confusion can also occur when considering the tonnage of species caught, as you can catch huge numbers of some species which have relatively little value, whereas with some species, there is great value in small tonnage.

The overall tonnage taken, (in thousands of tonnes) per nation in 2015 was:-

Norway 2146

Iceland  1317

Spain 901

UK 701

France  497

Even given the caveat about the different value of different species, these figures show the massive potential out there. The tonnage for an independent UK, free from the fetters of the CFP, should be the same or better than Norway.

Things get even more complicated if one attempts to calculate how many fish the other EU member states take out of the UK zone, because figures of the percentage share amongst the member states per area zone is broken down by species. The UK may catch as many as 90% of the total catch of one individual species in our own EEZ but as little as 10% of another. Realistically, the figure is about 40% overall, which mean that vessels from other EU member states take 60% of what is the British people’s resource. France has admitted up to 70% of its total catch comes from the British EEZ.

No other EU Member State gave away its own resources to the degree that we did.  We cannot continue to do this, but on the other hand, if on Independence Day, we swung to the opposite extreme and allowed no EU vessel in our waters, the consequences would be dramatic and damaging. What is required is a transitional time-limited process. Fortunately, on Independence Day, when the Treaties and Regulations cease to apply, we will revert back to our Fishery Limits 1976 Act, which functions under UNCLOS  111, through article 62

Utilization of the living resources

  1. The coastal State shall promote the objective of optimum utilization of the living resources in the exclusive economic zone without prejudice to article 61.
  2. The coastal State shall determine its capacity to harvest the living resources of the exclusive economic zone. Where the coastal State does not have the capacity to harvest the entire allowable catch, it shall, through agreements or other arrangements and pursuant to the terms, conditions, laws and regulations referred to in paragraph 4, give other States access to the surplus of the allowable catch, having particular regard to the provisions of articles 69 and 70.

This is a way whereby a transfer of operations could be fairly moved across in a time-limited period, with no permanent right of access conceded.

In my final article, I will look at the benefits  and potential of Brexit fisheries, but it must not be forgotten what Theresa May said in her Conference speech on 2nd October: The authority of EU law in Britain will end. This,after all, is what Brexit is about.

We trust that we can take her at her word and that the future of the British people’s resource and the revitalisation of our fishing industry and coastal communities rests in the hands of our elected representatives at Westminster and no one else.

No, we are not behind the Mishcon de Reya legal bid

You may have read that Mishcon de Reya, a prominent firm of solicitors, is launching a legal bid to determine who (and how) decides the removal of the United Kingdom from the European Union.

Just before the referendum, and following David Cameron’s statements about intending to trigger Article 50 shortly after the referendum, I examined this matter and I reproduce two emails which give the essence of the arguments. (They are emails and not polished political or legal statements.)

(June 2016)

Crown prerogative and its exercise are an opaque area of the British constitution. Generally legal treaties have been regarded as only one factor in the British government (and here I mean a majority of the Cabinet), taking any foreign action. The most prominent occasion was the declaration of war in August 1914. It is true that Edward Grey made a speech to parliament on August 3rd 1914 which is often quoted. This speech did not define the trigger required for war, nor was there a vote in the House of Commons. What did happen was a massive ‘spin’ operation in Parliament and the media to define the Asquith government’s confusion as ‘statesman-like’. The Asquith government was saved by the Germans openly invading Belgium. As Asquith wrote to Venetia Stanley on August 4th 1914, “We got the news that the Germans had entered Belgium … This simplifies matters, so we sent the Germans an ultimatum.”

This ultimatum was never put to Parliament for pre-approval.

It is pretty clear that the new Prime Minister will need some ‘simplification’ shortly after taking office.

The bottom line is this:

The new Prime Minister must ensure that the UK Parliament did not reject his (her) notification as not being within the constitutional requirements. Quite evidently the defeated Remain groupers in Parliament could hide behind this. At first sight, it would therefore seem a new Prime Minister should carry a short bill or possibly a resolution that ‘Parliament should take note of the result of the referendum that Parliament called and that the government should implement the result and that it should notify the EU of its intention’.

Any opponents of democracy would be flushed out.

Emails dated 21-22 June 2016:
“Can Cameron decide to make an Article 50 notice to withdraw while sitting in his bath?

1) “Any member may decide to withdraw from the Union in accordance with its constitutional requirements”. The “withdrawal” is clearly the repeal (or modification) of the ECA Act of 1972 but what is, and who takes, the decision to withdraw? As the decision to withdraw is effectively the same as the withdrawal under Article 50, this seems to require an Act of Parliament.

2) We know the Treaties will cease to apply two years after notification (unless otherwise agreed) so who gives the notification, and when?

It seems to me that “notification of its intention to withdraw” means also the decision to withdraw has been taken constitutionally and that is the same as withdrawal, although the decision to withdraw and the withdrawal would take place at different times. Therefore, the notification cannot be given until the decision to withdraw has been taken. Only an Act of Parliament can withdraw and, therefore, only an Act of Parliament can decide to withdraw, with an effective later date, or no date, determined.
Therefore, no notification can be given until an Act of Parliament takes place.”
– – – – –
‘If I were the post-Brexit PM, I’d trigger Article 50 straight away’

Well, the point of the note was to explore whether a post-Brexit PM could do that -in his bath! or by a media leak or a PR statement.

Surely any such action would immediately invite the enquiry as to whether this ‘notification’ complied with the UK’s constitutional requirements. Alternatively the EU could say, well we assume that the British PM knows the UK’s constitutional requirements better than us so that’s it- the notification is a commitment and UK leaves the EU in 24 months, that is done and dusted, now we are off to Mykonos for 2 months and let the British PM deal with the fallout from his actions e.g. that the UK Parliament would reject his notification as not being within the constitutional requirements since the British PM cannot withdraw Parliament’s assent to the ECA while sitting in his bath or indeed in any posture.

‘No point in enacting post 24th June legislation’. As you know the Leave Alliance does not think we should abandon regulatory convergence for several years as it restricts the possibilities for the UK. Also a feature is that we would repatriate or enact as UK law all EU relevant legislation since 1973 exactly the same as Ireland and India did specifically and the American states did by implication after independence. I mean all pending cases in the North Carolina courts in 1783 under the Theft Act did not cease because the UK recognized North Carolina as independent, they simply carried on while there were some immediate changes at the constitutional level, that is what I expect to see in the UK.

It is then worth looking at each area of law and policy because some such as Foreign Policy would have hardly any legislative problems while in others such as the CAP this could carry on as it is for some time while the direction was transferred from Brussels to London-however a lot of the UK’s trade is food products so that would have to be worked in.

So to maintain regulatory convergence the UK would enact post-24th June EU laws

Update: November 4th 2016

It appears that the judges have arrived at the same conclusion, albeit using different arguments against the use of Crown Prerogative and citing the removal of rights from British citizens. This seems to me a rather weak line of argument when one considers that the declarations of war by Prerogative in 1914 and 1939 certainly removed the rights of British citizens.

However, Asquith was never pressed by Parliament for a vote of approval for war to take place because of the ‘simplification’ caused by the German invasion of Belgium.

Up to now, the new government has had ample warning of this problem and could have taken the opportunity in July of passing a short bill or a motion as laid out above.

It will now have to scramble to catch up but then it is clearly not yet ready to enter a negotiation so perhaps a further few months’ delay will be beneficial

(Please note that Futurus has published a new briefing, Should the uk stay in the EEA? It can also be accessed from  the publications page of the website.) 

Fisheries part 2 – the legal position

Once Article 50 is invoked, unless there is a mutually-agreed extension to the negotiation process, the treaties will cease to apply after the stipulated two year period whether or not an agreement has been reached. We will no longer be members of the EU, and thus no longer bound by EU Treaties and Regulations. Legislation on our statute books which began life as EU Directives will still apply because they have become part of our domestic legislation, although we will have the freedom to amend or repeal them.

Whatever exit agreement Mrs May seeks with the EU, it is in everyone’s interest to work for an amicable settlement, as is becoming apparent. However, if the other 27 members start being awkward for whatever reason, it will make no difference as far as Article 50 is concerned:- we will be out after two years.

It is useful that in fisheries we have already experienced two occasions when a termination date for an agreement was reached, as will also be the case at the end of the article 50 process. The second example shows very clearly that the Commission learnt from the first, even though the two incidents are 30 years apart. They show very clearly what will happen, particularly without any agreement.

The background to the first incident goes back to our Accession Treaty to join the then EEC in 1972. Within that Treaty was a 10-year transitional derogation, which terminated on 31st December 1982, exempting the UK from the equal access principle which handed the competency of all UK waters to Brussels. In other words, while the derogation was in force, the 6 nautical mile and partial 6 to 12 mile limits were reserved for exclusive use by the British.

A further transitional derogation, Regulation 170/83, was agreed and should have come into effect on 1st. January 1983 to replace its predecessor. However, it did not become operational until 25th. January 1983, leaving a 24-day gap.

Kent Kirk, a Danish fishing captain who was also an MEP, decided to test the legal position during those 24 days. He took his Danish-registered fishing vessel inside the British 12-mile and started to use his fishing gear. He was promptly arrested, escorted into North Shields, tried, found guilty and fined. The case went to the European Court, and a year and a half later, the guilty verdict was overturned. Why was this?

The answer was simple. We British had completely failed fully to read and understand the Treaties and Regulations we had signed up to. In our Accession Treaty, we had handed all our waters up to the base line (The low water mark – the shore line) to the EU. When the first 10-year derogation giving us back exclusive use out to 12 mile expired, we reverted back to the original arrangement under our Terms of Accession for 24 days until the new derogation came into force. Kent Kirk proved that without a derogation – in other words during the first 24 days of 1983 – any EU vessel could have fished up to the British beaches.

In 2012, thirty years later, the Commission realised that, thanks to the increasing complexity of fisheries management, they were facing a similar situation. The next 10-year transitional derogation would not be ready in time to take over from Regulation 2371/2002 which was schedule to expire on 31 December 2012. In order to avoid a repeat of the Kent Kirk saga, the existing Regulation was extended by a year to give time to finalise Regulation 1380/2013 which replaced it seamlessly on 1st January 2014.

The lesson from these two cases is that when you hit a termination date, Regulations cease to apply if nothing is put in its place. This is particularly important with regards Article 50, as section 3 of the Article states that “The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period. “

As far as fisheries are concerned, unless an agreement is reached to change the negotiating timetable, two years after invoking Article 50, at midnight of the given day, all the terms stated within our EU Accession Treaty cease to apply, meaning that the legal basis for handing competency over the living marine resources within all UK fishing waters to the EU collapses and competency returns to HMG. Furthermore, as EU Regulations rely on the Treaties for their legality, those Fisheries Regulations which create and distribute EU quota and determine the percentage share out and who fishes what and where in the British zone also cease to apply.

To repeat, everything goes. This even includes the rights of EU vessels to fish in British waters, known as historic rights, which date from 1971. The relative stability quota share out of 1983 also goes. Bearing in mind that the EU quota system was designed as a tool of integration, rather than sensible fisheries management, its demise will be a very positive development. If, however, by the end of Article 50’s two-year negotiation period, the UK has not signed off a fishing policy to replace EU legislation, we will find ourselves in a legal positon whereby no British vessel can fish in EU waters and no EU vessels can fish in British waters, while all existing allocations cease to apply

What has to be understood is that once the clock starts ticking, it is imperative to have an agreement in place by the time we leave, for otherwise, this is the problem we will face on exit day. Under international law, our government will be legally responsible for the management of the UK 200 nautical mile/median zone, and we automatically revert back to the Fishery Limits (1976) Act.

Given the obvious benefit of regaining control of these resources and the consequences of the Treaties ceasing to apply, it is obvious that we will have the upper hand in any new negotiations with the EU over any access to our waters.  However, the UK government and fishing industry are far from united in their enthusiasm for the end of quotas and the return of fisheries to UK control. In the next article, I will explain the difficulties which could complicate negotiations – the concern of banks who have lent money based on EU quota that will be all be lost once we leave the EU.