WHY THE INDUSTRY CAN’T JUST SURVIVE 21 MONTHS TRAPPED IN A TRANSITION
The governments capitulation to re-obeying the Common Fisheries Policy (CFP) after Brexit terminates our membership is not only a betrayal of Britain’s long maligned coastal communities but presents an existential threat – this is not just 21 months the industry can survive.
Any repeat of the vague assurances that we will ‘take back control’ but in 2021, are no longer worth a damn given this performance. Especially now that the EU is able to lever fishing as part of the wider trade negotiation.
The governments words have been exposed as a smoke screen and playing semantics, we were well warned given that on the 18th of December the PM said;
“Leaving the CFP and leaving the CAP” wouldn’t give the opportunity until “post that implementation(transition) period – to actually introduce arrangements that work for the United Kingdom.”
Sadly, too many and the public and our industry were happy to go with the governments vague words, with the fateful suggestion of a 9month transition giving credence to mandarins.
Little heed was paid to FFLs warnings to the implications of the transition and that fishing shouldn’t be included. It is now great to see the grassroots of the industry finally alert and ready to fight to press MPs that no deals better than this bad deal with demonstrations planned.
LITTLE GUARANTEE OF 21 MONTHS – BARTERED FOR A WIDER TRADE DEAL
The speed at which the UK’s trump card has been given away indicates that come the trade deal the same will happen again. Fishing access and even more resources will be handed over for after 2021 onwards for a trade agreement, the terms of which will be stipulated by the EU.
Worse the Government has capitulated so weakly that the EU will be disinclined to offer a trade deal worth more than a box of smarties.
NO VOICE OR RECOURSE
As has been warned continuously the EUs transition terms mean that the UK will agree to obey all EU law, including any new law the EU wishes to foister upon us, as a satellite vassal state but will have no input of recourse to resist any detrimental legislation.
Reading Article 125, part 3 of the draft UK draft leaving document;
The Union may exceptionally invite the UK to attend, as part of the Union delegation, international consultations and negotiations referred to in paragragh 1 of this article.
What a degrading, humiliating position the UK Government have placed our Nations in. We will have to sit in the room and be grateful for what we’re about to receive. Far from taking back control the government has signed up to something that spits in the votes face. This is where it really gets serious –
EU CAN SCRAP RELATIVE STABILITY
Currently all member states receive a fixed share of whatever internationally agreed fishing opportunities the EU obtains on their behalf after negotiations with other independent coastal states – this is called relative stability.
Although the UK will officially be a coastal state we will be bound by the transition where we must obey all EU law. This means we will return home only to hand our resources straight over to the EU and the CFP.
With the UK no longer a member and a mere vassal state the EU will be free to scrap relative stability and claim even more of what should and could be British fish than they do already.
Part 4 of the Agreement states: Without prejudice to article122(1), the relative stability keys for the allocation of fishing opportunities referred to in paragraph 1 of this article shall be maintained.
This sounds ok until anyone bothers to read what the fishing opportunities in Paragraph 1 actually are;
Paragraph 1 relates to article 43(3) TFEU; The Council, on a proposal from the Commission, shall adopt measures on… the fixing and allocation of fishing opportunities.
This means the council must adopt what the Commission proposes. As relative stability keys can be changed, the EU Commission can decide what and who takes out of UK waters. It’s difficult to see how the EU27 won’t wish to pick the UKs pocket.
EU CAN ABOLISH THE 12 MILE LIMIT.
The 12mile limit is bestowed on member states through a Derogation (exemption) from equal access up to the baseline (beach). This derogation renews every 10 years with the CFP – next due in 2023.
In many areas this is only 6 miles as the derogation adopted rights given under the London Convention – Fishing for Leaves lobbying means the London Convention will end but the rights the CFP adopted from it will now continue with the CFP which we will continue to obey.
Worse without the UK having any representative power in the EU the other 27 can vote to abolish this derogation and gain access right up to the beach.
This would expose our inshore and shell-fishermen to EU exploitation – one could see the Spanish look to catch shellfish themselves and lorry it home as they have done with our whitefish. Why buy from the Brits when you can send a vivier vessel to catch it yourself?
It would allow the Dutch Pulse vessels to fish right upto the beach too.
We could see the South coast hammered by the French, the Thames and east Anglia by the Dutch and the Spanish take over and squeeze out shellfish areas such as Shetland, Orkney, Yorkshire and Wales.
EU CAN ENFORCE AN ILL-FOUNDED DISCARD BAN WITH CHOKE SPECIES
The EU can use a fully enforce discard ban and choke species to cull a large proportion of what’s left of the British fleet. International law Under UNCLOS Article 62.2 says;
Where the coastal 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.
Due to quotas/science being so out of line with stock fluctuations very few vessels have enough quota, or can just manage to catch the right mix of species to match their quotas, to avoid having to discard.
If a full CCTV enforced discard ban is implemented, fishing must stop on exhausting the lowest quota allocation as otherwise vessels would keep catching the species they have no quota for whilst looking for others.
The EU can demand full enforcement of the discard ban to drive many to the wall, then, without the fleet capacity to catch our resources, they can claim their neighbour (who has been stupid enough to obey EU laws) resources.
In 7 years since the disgraceful discarding that is forced upon fishermen came to public light there has been no credible solution to the irreconcilable problem that a rigid, micro-managing, precision weight-based quota system cannot work when imposed on the dynamic, variable mixed fisheries we have around the British Isles.
Brexit provided a fantastic opportunity to implement decent, fit for purpose British policy that worked in mixed fisheries. This has now been snatched from us and the industry will now be subjected to a fully enforced discard ban as of 2019.
The green NGOs, many of who receive funding from the EU, are gearing up for full CCTV enforcement as the only way to police a dysfunctional system where its impossible for fishermen to catch to match quotas out of line with stocks.
The EU has the ability and every reason to do this and anyone who doesn’t think so is either naive or oblivious to the past 20years of continually turning the screw.
CONTINUITY OF RIGHTS – VIENNA CONVENTION
We now face the possibility of legal action which could bog us down for years to come through the Vienna Convention on Treaties.
Article 70 of the Vienna Convention 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”.
Quite clearly the EU has otherwise provided through Article 50 which says; “the treaties cease to apply”.
This means there’s no recourse under international law for the EU to have any sway over Britain.
A transition period will be agreed through a new treaty, meaning we officially leave the EU with Article 50 but then as part of a “transition” we will agree in a new treaty to re-obey ALL EU law we just left.
This effectively cancels out the clean break given by Article 50 of the TEU and Article 70 of the Vienna Convention as we will have created a new treaty/agreement with the same rights and obligations as the old.
Unless the transition treaty only runs for 21 months and has a clearly defined Article 50 clause where “the treaties cease to apply”, then Article 70 of the Vienna Convention kicks in because;
“the termination of a treaty does not affect any rights, obligations or legal situations created through the treaty… unless the treaty otherwise provides”.
In addition to this the EU could easily cite Article 30 of the Vienna Convention to claim continuity of rights between an old treaty and a new. It provides that if a previous and latter treaty are not incompatible, and that the old treaty is not terminated, then the rights of that treaty will still apply.
Creating this continuity of rights creates the potential for the EU to instigate protracted legal challenge AFTER the transition period ends.
The Vienna Convention is a grey area but that’s the point – the EU doesn’t need to be proved right, it just needs to nail the UK governments feet to the floor in a protracted legal fight.
One would be a fool to suggest that the EU and its fishermen would not use any means possible to keep the UK trapped in the CFP for years to come to cull the UK fleet with punitive rules – especially a full CCTV enforced discard ban.