We’ll be caught hook, line, and sinker if we don’t exclude fishing from the transition deal

We’ll be caught hook, line, and sinker if we don’t exclude fishing from the transition deal

Recent media reports have suggested that the British Government is willing to concede that the EU’s share of British fish will remain unchanged after March 2019. 

Campaign group Fishing for Leave branded the idea “a pitiful, disgusting, abject surrender and capitulation to EU demands” and the Scottish Fishermen’s Federation warned that accepting the CFP during the whole transition period would mean taking part in the December 2018 negotiations setting quotas for the whole EU.

But why would this be an issue? And why is there so much anger towards EU policy?

The Common Fisheries Policy is essentially a set of regulations for managing European fishing fleets. It gives all EU fleets equal access to EU waters and fishing grounds, making no distinction between the waters of each member state. Britain signed up to it when we joined the EEC in 1973, handing over our waters to become a ‘common resource’.

Every year, the EU negotiates with Denmark, Iceland, Norway and Russia, all members of the North East Atlantic Fisheries Commission, to determine how much of each species should be caught by each nation. Under NEAFC, countries are allocated different amounts of fish that they are allowed to catch within certain zones. This system exists because the fishing zones, like shoals of fish, cross national borders. On the rare occasion that a zone exists completely within the sovereign waters of a nation, the nation has the exclusive right to that zone and is not bound by any quotas. For example, the Bristol Channel (Division VII) is entirely within the 200-mile sea limit that the UK can legally claim after Brexit. After Brexit, the UK will be under no obligation to share any fish from the Bristol Channel area, unless it felt it lacked capacity.

At present, the EU negotiates internationally as if it were one nation and then divides up the quotas it has secured between its member states. But this is often based on out-of-date statistics. For example, in East Anglia and Kent, small boats see an abundance of Sole fish but have little quota. Further north, Sole is very rare but fishermen have a huge quota which is then wasted.

The UK has a small quota for Sole but abundant supply

The British fishing fleet has suffered a great deal under this system. Trawlers from the EU currently take around 750,000 tonnes of fish from UK waters each year, with a processed value of around £4 billion. This amounts to around 55% of the total catch of EU vessels. From 1995 to 2005 the number of British fishing boats fell from 8,073 to 6,716 and the number of fishermen fell by over a third.

The seas around the UK are diverse; various types of fish are often located in the same area. This makes it very hard for fishermen to catch the fish to which they have a quota, even with specialised nets. This leads to what is call ‘choke species’ in which the quota of an undesirable fish is used up whilst a boat is fishing for something else. In the West of Scotland, fishermen are not allowed to catch Cod and only a very small amount of Whiting, despite there being a huge abundance of both types. Due to a discard ban coming into force next year, fishermen will have three options if they inadvertently catch the wrong type of fish: land them legally and pay a fine, land them secretly and risk arrest, or throw them back into the sea, which will soon be illegal. Fishermen would be forced to falsify records just to stay in business. But recording false information about what was caught and where leads to misinformation about fishing stocks, making the quota system worse.

Fishing Zones in the North Atlantic
Fishing Zones in the North Atlantic

At best, the Government has shown lukewarm support for UK fishermen and it had been unclear how closely ministers wish to remain aligned to the system both during any implementation period and afterwards. In her Mansion House Speech, Theresa May called for “reciprocal access to waters” and a “fairer allocation of fishing opportunities”. Being generous, this language could conceivably be interpreted favourably by Brexiteers. George Eustice, the Leave-backing fisheries minister, had made positive noises by hinting that the UK would join NEAFC as a separate, sovereign member. “Reciprocal access to waters” in the context of NEAFC would mean Britain would have the power to exchange our quotas for fish that British people don’t eat or are less well equipped to catch, in exchange for the fish that has a high market value in the UK.

Theresa May called for a ‘fairer allocation’ of fish

But at Mansion House, the Prime Minister was talking about allowing fishing access for the EU, not in a general sense, or in a way that saw the EU as just another coastal state. She said the EU wanted an unprecedented level of access to our fishing waters, but failed to challenge the demand. Instead she used it as a reason for the UK gaining an unprecedented level of EU market access. May’s call for a “fairer allocation” sounded like a renegotiation of the CFP and implied the government was considering an associate form of the Common Fisheries Policy as part of the final deal.

Keeping an associate form of CFP would be disastrous, but there are concerns that the EU could use two points of international law to permanently damage the UK’s capacity to fish if we stayed in during the next few years. The first is the United Nations Convention on the Law of the Sea (UNCLOS).

Article 62.2 of UNCLOS states that an independent coastal state must work out what capacity it has to fish everything it is allowed to, based on what was agreed internationally. If it cannot process everything itself, it must allow other nations to catch the surplus. Since 55% of the total catch of EU vessels is in British waters, the EU will almost certainly demand access. However, EU boats could gain much higher access after Brexit if it used the CFP to decimate the UK fleet in the next few years. Fishing for Leave suggest the UK could force foreign vessels to pay a levy and land their catch in Britain if this Article were invoked, but the damage to the industry if inside the CFP during the next three years would already have been done.

The other point of law that concerns the industry is the Vienna Convention on the law of Treaties (1969) which says:

“The termination of a treaty does not affect any rights, obligations or legal situations created through the treaty…. unless the treaty otherwise provides, or the parties otherwise agree”.

Presently the EU has a huge stake in British waters and therefore could have used the Vienna Convention to argue that Britain was taking away historic rights and obligations with the termination of the EU treaties. However, since Britain used Article 50 to withdraw, which states that for the member state wishing to leave, “the treaties will cease to apply”, the EU has already agreed to renounce control over British waters. By including Fisheries in the transition, the UK would have to go through the new agreement with a fine tooth comb, ensuring that the EU had unequivocally relinquished any past or future claim it had to fish within British waters. If the UK failed to do so, the EU could conceivably maintain free access by claiming the termination of the withdrawal treaty affected their right to fish.

Despite the fact that the UK has, to all intents and purposes, agreed to remain inside the Single Market during a transition period does not mean that fisheries must be included. Iceland and Norway have virtually full access to the Single Market as part of their EEA arrangements but retain full independence over their fishing waters.

Sheryll Murray MP, who represents fishing communities in Cornwall South East, said an optimal solution would be withdrawal from the policy entirely in March 2019 but is prepared to accept leaving in March 2019 but honouring the 2019 quotas in that year. She’s clear that from 1st January 2020 the UK must have full sovereign control of our 200 mile waters to avoid being part of the new quota negotiations.

Some might argue that it would be too difficult to scrap the CFP and replace it with a British system between now and March 2019, but there is potentially huge bureaucratic headache, whatever we decide to do. The CFP takes its authority from the EU treaties which apply to member states only and since Britain would technically be a third country, it is unclear how the EU would proceed. If we maintained a shadow form of CFP, it’s possible that references to the European Commission, European Parliament, and the Council of Ministers would have to be removed and equivalent bodies would have to be created in the UK in order to shadow CFP regulations.

Publicly, DEFRA has maintained up to this point that the CFP being part of a Brexit transition is a matter for negotiation. However, privately, a senior civil servant conceded to representatives of the fishing industry last month that it would be included in the transition, telling them: “everything was in” and “if not, we are putting ourselves in”.

A DEFRA spokeswoman said the civil servant in question was wrong to suggest that CFP would be in the transition and stressed that it was still a matter for negotiation, but the remarks do lend weight to the idea that the civil service never intended to exclude fish from the transition.

Brexiteers are livid with the idea of being sucked into joint EU sovereignty on one of the defining aspects of Brexit and are extremely wary of a transitional arrangement. It remains to be seen how Theresa May will handle a potential rebellion from backbenchers if the UK does indeed roll over on fishing.

The UK must exclude fishing from the Brexit transition period