FFL: Government’s Fisheries Bill deserves a cautious welcome

CIB affiliate member Fishing for Leave gives a cautious welcome to the launch of the Government’s Fisheries Bill, but warns that the serious threat to the fishing industry from Theresa May’s Chequers proposals remains.

The launch of the Government’s Fisheries Bill by DEFRA secretary of state Michael Gove deserves a cautious welcome.

The government’s announcement said:

‘The Fisheries Bill will enable the UK to control who may fish in our waters and on what terms… The Bill also gives the UK the power to implement new deals negotiated with the EU and with other coastal states and manage fisheries more effectively and sustainably in future.’

At its heart the Bill seeks to deliver the following:

  • Controlling access – by ending current automatic rights for EU vessels to fish in UK waters.
  • Setting fishing opportunities – by proposing powers to ensure that the UK can set its own fishing quota and days at sea.
  • Protecting the marine environment – by ensuring fisheries management decisions are taken for the benefit of the whole marine environment

Many who have fought for 25 years to escape the disastrous CFP thought we would never see this day.

We never thought we would see legislation which would allow Britain to take back control of our waters, £6-8bn of our resources, and decide access and management for our own national benefit – as Norway, Iceland and the Faroe Islands do.

That is hugely welcome, but it is the devil in the detail which we fear. As the government admits, this bill is subject to the wider negotiations.

Negotiations where – disgustingly – Theresa May proposes to re-obey the Common Fisheries Policy (CFP) after Brexit with an ever-extending ‘transition period’ and a Chequers plan that will see the UK obey a so-called ‘common rule book’ – probably forever.

The fishing industry and Fishing for Leave have warned that, with much of the industry already struggling, continuing CFP policy for the transition would finish many off.

The transition would allow the EU to enforce detrimental rules to cull the UK fleet. This would allow the EU to use Article 62.2 of UNCLOS to claim Britain’s ‘surplus’ resources that a shrunken British fleet would not have the capacity to catch.

The Fisheries Bill may set in place the legislative ability for Britain to independently take back control, but it doesn’t look like happening soon – which is disastrous.

We also reiterate our grave concern and continue to lambast the failed proposal to address discarding of fish above quota limits whilst keeping the fundamentally flawed quota system that causes the discards.

The government proposes using our repatriated resources to give extra fishing allowances to vessels, so they have enough quota for all species and therefore will not need to discard.

However, this extra will not be allowed to be profited from – it must be landed for free.

All this will do is perpetuate a race-to-fish. Vessels will have to catch more and more to find what they can profit from. Instead of discarding, they will have to land mountains of fish for free.

We have told DEFRA that this will fail spectacularly. Sadly our advice seems to have fallen on deaf ears.

Any betrayal of our fishermen will have serious electoral consequences

Fishing for Leave’s John Ashworth explains why electoral considerations mean that British fishermen will not be sold out to the EU once again.

British fishermen have not had much reason for happiness since we joined the EEC. The Common Fisheries Policy (CFP) has been an ecological disaster and has run our industry into the ground. But last week’s Conservative Party Conference at last gave some glimmers of hope for the future.

The Attorney General, Geoffrey Cox, gave us a much-needed reminder of just what is at stake with Brexit – nothing less than our very ability to govern ourselves:

‘At 11pm on 29 March 2019 we will leave the European Union.

‘And soon thereafter, in an extraordinary moment in our history, the EU institutions will no longer have the right to make laws for our country. That power will belong exclusively to the sovereign Parliament of Great Britain and Northern Ireland.

‘That is a precious prize.’

It is indeed. It means that every single individual MP will become fully responsible for the governance of our nation, something which for 46 years has been missing.

And so how will we use this new-found sovereignty for the benefit of our agriculture and fisheries? The Prime Minister made the goal quite clear in her party conference speech:

‘Our proposal would be good for our rural communities, getting us out of the Common Agricultural Policy.

‘It would be good for our coastal communities. We would be out of the Common Fisheries Policy, an independent coastal state once again.

‘And with the UK’s biggest fishing fleets based in Scotland, let me say this to Nicola Sturgeon. You claim to stand up for Scotland, but you want to lock Scottish fishermen into the CFP forever. That’s not ‘Stronger for Scotland’, it’s a betrayal of Scotland.’

It is high time that someone from another political party took Nicola Sturgeon and the SNP to task on this subject. But it also nails Mrs May’s colours to the mast. If the Conservative government lets our fishermen down, then the SNP will be able to make the same accusation with a vengeance.

And were it not for all those newly gained Scottish Westminster parliamentary seats, Mrs May would not be prime minister now – all down to the fishing issue.

We can be certain of the following. If the EU believes there is going to be a ‘no deal’, it will raise the issue of EU access to British waters. The ball will be in their court: they will have to ask the UK.

If there is silence from the EU on fishing rights, then we can expect a deal – however bodged – so that both parties can move into the transitional period. And the EU will continue to benefit from access to UK waters via its present fisheries policy until 1 January 2021.

Remainers are fond of saying that the fishing issue is too small to bother with, and will be bartered away. I disagree. Like the Northern Ireland border, it will be a key issue, just as it was on accession. This time, British fishermen will not be so easy to sell down the river.

We have less than five months to prevent the annihilation of our fishing fleet

The EU’s Common Fisheries Policy has decimated our fishing fleet. We have less than five months to save it from total annihilation, writes CIB Deputy Chairman Philip Foster.

When Heath betrayed British fishermen as a condition (among many) of joining the EEC, very few at the time noticed what was being done. The EEC had managed, just a few weeks before Heath signed up, to extract a new clause about fishing waters from the Treaty of Rome. But because, in order to disguise this theft, Heath had negotiated a derogation of ten years, this duplicity went unremarked upon.

Some forty years on, and after some thirty years of the Common Fisheries Policy (CFP), we see the British fishing fleet decimated, coastal towns in steep decline, and the seas around Britain – now EU rather than British waters – severely over-fished. Worse, those scientists charged with monitoring the state of the fisheries are unable to do so as they have no reliable data about fish stocks. Why? Because of the CFP.

As is now well known, the CFP involved quotas of catch. If a fisherman caught more than his quota, the excess was simply dumped overboard to rot in the sea. Hence only data about what was actually landed reached the scientists – useless information because of the unknown quantity of discards.

But, you may well say, when we leave we get our waters back, so all this can be reversed.

Once again our duplicitous politicians are betraying us. During the two year ‘transition period’ after 29 March 2019 our fishing fleets will be exterminated.

There is to be a new CFP in 2019. This appears to reverse the previous CFP which, as has finally dawned on Brussels, involved huge discards of millions of tons of good fish. So what have these paragons of intelligence come up with? The new CFP will ban discards!

Sounds good? Er, no. On the new system, quotas remain as before, but now, if you catch your quota of any one species, you must return to port, because were you to carry on, you might catch more of that species which would have to be discarded – which is now forbidden.

This will be ruinous to any fishing company in the UK where our quotas are small anyway. Suppose you have quotas for say, (and I write as a landsman!) haddock, cod, herring and mackerel. Once you have your quota of any one (your ‘choke’ species), you must return to port.

If the UK starts this policy, which it must during the two year ‘transition’, then our fishing fleet will be bankrupted in six months. We will be left with no fleet at all.

Then comes the final twist of the knife. Once we have no fleet, Clause 62.2 of the United Nations Convention on the Law of the Sea (UNCLOS) comes into effect. This, in effect, says that if a nation does not have the capacity to catch all its available resources it must give the surplus to its neighbours.

So if the EU can destroy our fleet in the ‘transition period’, then they’ve every reason to use this article to claim what we can no longer catch. There will be no going back in the foreseeable future.

Talk to or write to your MP, and spell out this disaster coming down the track. Sadly, too few MPs understand that fish doesn’t come from supermarkets, but from the sea.

……………………………………..

For further information, see our booklet Seizing the Moment by John Ashworth, and visit our affiliate member Fishing for Leave.

Photo credit: Fishing boat at Cruit Island near bridge
cc-by-sa/2.0 – © Joseph Mischyshyn

Floundering – and not just over fishing!

Slowly but surely, the degree to which the Government and the Department for Exiting the European Union are floundering in their Brexit plans is becoming more apparent.

A week ago, Alistair Carmichael, the MP for Orkney and Shetland, finally received an answer to a written question about fishing. Here is the question and the answer:-

Question:
To ask the Secretary of State for Environment, Food and Rural Affairs, what legal identity is planned to be in place to prevent EU vessels operating inside the Orkney and Shetland 12 nautical mile zone during the proposed 21-month implementation period after EU treaties and the derogation for exclusive use of the Orkney and Shetland 12 nautical mile zone cease to apply to the UK. (140647)

Tabled on: 02 May 2018

Answer: (George Eustice🙂

The implementation period agreed between the UK and EU was endorsed by the European Council on 22nd March.

Under the agreement, current fisheries rules and enforcement arrangements will continue to apply. This includes provisions relating to access to waters within the UK’s 6-12 nautical mile zone.

Access to fish in UK waters after the implementation period will be a matter for negotiation. Access will be on our terms, under our control and for the benefit of UK fishermen.

You will notice that the answer completely fails to address the question. It says that current conditions will apply, but does not mention the legal basis. There is a good reason for this – there isn’t one!

It’s not just fisheries issues which are exposing the hole which DExEU and the Government are digging. On 23rd May, Robin Walker and Suella Braverman appeared before the Commons select Committee. You can watch the full session on Parliamentary TV. Some particular highlights   include Mr Walker’s awkwardness when questioned on customs arrangement. More importantly, there was much flannelling around the subject of the legal basis of any future treaty. Pat McFadden MP asked four times about whether Parliament will be expected to vote on the financial arrangements before a legally-binding treaty is finalised – in other words, that MPs were being expected to vote for the package “in good faith”.

The scale of the mess surrounding the negotiations is being exposed more and more by the day. A report in The Times suggests that Mrs May is seeking an extension of the transitional period until 2023. This comes a day after EU sources dismissed the government’s “backstop” plans for the Irish Border. Mrs May insisted that the proposal would be time-limited, but one Brussels source said: “It will apply for as long as there is no credible alternative. It can’t be time limited or it’s not a backstop.”

The government is going round in circles. The totally disastrous position facing our fishing industry if Mrs May persists with her current plans were laid bare over a month ago.  We remain hopeful that this will not happen because these plans are being proved more untenable by the day. It may take a crisis to bring about a change of direction, but so flawed are the current plans that the crisis may not be long in coming.

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

A briefing note from Fishing for Leave

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

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

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

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

DISCARD BAN

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

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

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

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

SLASH UK RESOURCE SHARES

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

Part 4 of Article 125 states;

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

Paragraph 1 relates to Article 43(3) TFEU;

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

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

12 MILE LIMIT

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

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

GOOD FAITH

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

Article 4a – Good faith;

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

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

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

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

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

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

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

What good faith?

M. Barnier, the EU’s chief negotiator, showed a chart of the draft withdrawal agreement at a press conference on 19th March 2018 . It was colour-coded, with green being used to highlight what had been agreed. What struck me on seeing the draft agreement in full, that there was over 170 articles, of which a handful had been added at a later date and denoted by an (a) suffix. It was as if the negotiators had hit a problem, or thought of something else resulting in the necessity of adding something more or less on the hoof.

Article 4a is the first of these and its wording is significant:

Article 4a

Good faith

The Parties shall, in full mutual respect and good faith, assist each other in carrying out tasks which flow from this Agreement. They shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising from this Agreement and shall refrain from any measures which could jeopardise the attainment of the objectives of this Agreement.

This Article is without prejudice to the application of Union law pursuant to this Agreement, in particular the principle of sincere cooperation.

Once this article appeared, the tenor of the standard replies to parliamentary written questions began to change. Take the example below:-

Robin Walker, Parliamentary Under-Secretary of State for Exiting the European Union in part reply to DUP Westminster leader Nigel Dodds – 27th April 2018.

In order to ensure that the UK’s interests are protected during the implementation period, a Joint Committee will be established to provide the UK with a means to raise concerns regarding new laws, which we consider might be harmful to our interests. We have also agreed that the whole Withdrawal Agreement will be subject to an article of good faith, ensuring that both sides support each other in delivering the agreement.

Note that the phrase “good faith” appeared in the reply. I am very suspicious about the proposals for the fishing industry during the proposed transitional period, especially relating to the exclusive UK use of the 6 and 12 nautical mile inshore zone. My concerns revolve around the legal authority underpinning the terms for any transitional arrangements. I remember vividly the1983 Kent Kirk case, where a Danish skipper, who was also an MEP, deliberately brought his fishing vessel inside the British 12 mile limit and started to fish. He was promptly arrested, found guilty and fined. He then took his case to the ECJ, where the verdict was overturned,.

Kirk’s behaviour came about because of a loophole which he was keen to exploit. The first derogation giving the UK the exclusive rights expired on 31st December 1982, and the replacement derogation didn’t come into force until the 27st January 1983, so in good faith, Danish vessels were not supposed to fish inside that zone, but legally there was nothing to say that they couldn’t. If it wasn’t for the weather being particularly bad during January 1983, far more Danish vessels would have fished in that zone.

EU law operates in an unusual way. The Regulations take their authority from the Treaties, and when we joined the then EEC Edward Heath signed the Accession treaty on 22nd January 1972, and thereafter Parliament ratified the treaty through the European Communities (1972) Act, which came into force afterwards – on 1st January 1973.

Now it appears everything is being done the other way round. We currently have the complication of two bills going through Parliament, the European Union (Withdrawal) Bill, followed by the Implementation and Withdrawal Bill , but as David Davis told the House of Lords select committee on 1st. May it is not known yet if there will be a single treaty or two, nor when it will be agreed and signed – perhaps during the transitional period but maybe not until later. .

So we are in a state of utter confusion. There are two particular concerns. Firstly, Article 50 of TEU only allows the EU to sign the treaty when the UK takes up third country status – in other words, ceases to be a member of the EU. Our ministers and negotiators are clinging to the crazy idea that the rules and laws will be the same before and after Brexit. While the rules might be the same, the legal basis will be different as we will not be a member of the EU so its treaties will not apply to us and the EU will not have signed any new treaty with us, which means it is hard to know what legal basis the transitional period will be governed by.

Have the negotiators woken up to this seeming legal black hole? Is this why Article 4a has been included? Unfortunately, the EU doesn’t operate on a “good faith” basis, so very little is likely to be legally watertight, which will mean that any disputes will go to the ECJ. .

Certain written parliamentary questions are waiting answers that might throw some further light on this subject, but at the moment, if the proposed 21 month-transitional agreement goes ahead, it will be on a very uncertain legal basis. It is ridiculous that Parliament is being asked to vote on this when so much is still so vague. For all the talk of “good faith”, the door will be left wide open to legal challenges, just as happened in the Kent Kirk case.

A parliamentary question, asked only this morning  (Thursday 3rd May), proves the point. The reply was vague and not convincing:-

Peter Aldous (Waveney) (Con)

As this country will be an independent coastal state managing and controlling access to our own waters with effect from 1 January 2021, is the Minister able to provide an assurance that such access for EU fishing vessels will not be part of the Brexit negotiations?

The Parliamentary Under-Secretary of State for Exiting the European Union (Mr Steve Baker)

My hon. Friend will have heard my earlier answer. We are clear that future negotiations over trade must be separate from negotiations over access to waters. There would be no precedent to link the two, and we will continue to take this position in our negotiations on the economic partnership with the  EU.

It will be interesting when a reply is given to this written question:-

Mr Alistair Carmichael (Orkney and Shetland):

 To ask the Secretary of State for Environment, Food and Rural Affairs, what legal identity is planned to be in place to prevent EU vessels operating inside the Orkney and Shetland 12 nautical mile zone during the proposed 21 month implementation period after EU treaties and the derogation for exclusive use of the Orkney and Shetland 12 nautical mile zone cease to apply to the UK.

Slowly but surely, the holes in our side’s negotiating position are being exposed. If the transitional arrangements were scrapped and we instead decided to rejoin EFTA, it would solve these legal complexities at a stroke.