Like many others, we are studying the text of the draft EU/UK withdrawal agreement to…
Laying the Foundations
The Fisheries Bill contained in the Queen’s speech, along with the Government’s announcement that the UK will withdraw from the 1964 London Convention, are important developments that signal that the legal foundations are being laid for a post-Brexit fisheries regime in the UK’s exclusive economic zone.
Withdrawal from the London Convention removes the automatic right of non-UK fleets to fish within the UK’s 6-12 mile zone after the UK leaves the EU, and therefore the Common Fisheries Policy. An exclusive 12 mile zone has been one of the industry's red lines and this legal change is a precondition for its establishment.
This change will address the lack of symmetry in inshore access arrangements – apart from Northern Ireland/Ireland, the UK fishing industry has minimal activity in the 6-12 mile limits of other EU member states.
It is likely that the UK, following negotiations, will want to reinstate the voisinage or neighbourhood agreement, that allows Irish and Northern Irish vessels to have access to each other's waters. The crucial difference is that the conditions for access to fish in UK waters, will become an exclusively UK matter to decide.
An exclusive 12 mile zone should provide protection within which our inshore fisheries can thrive. It is by no means the only ingredient in the mix to provide a sustainable and profitable inshore fisheries but it lays an important foundation.
The new Fisheries Bill is currently being drafted. It is expected to surface early next year. It may be quite short, simply giving Parliamentary authority for the UK to set its own quotas, post-Brexit; along with the power to determine the access conditions for non-UK to fish in UK waters. Short the Bill may be but these are important legal building blocks in the foundations of the new regime.
In drafting the new Bill and designing the UK’s future domestic management regime, it will be important to learn the lessons from what hasn't and has worked in the CFP and the experience of other countries with relevant experience – Norway is the obvious example.
The greatest failing of the CFP has been its rigidity. Unable to respond quickly and flexibly to changing circumstances, including new science, it has too many times lumbered on in the wrong direction after everyone (almost everyone) recognised and acknowledged the need for change. The EU Cod Recovery Plan (still with us but now defanged after a legal tussle) and the current form of the EU landings obligation (even before it is fully implemented) are the two leading candidates of rules that have passed their sell-by date but live on as zombie regulations. There are many others.
It is important the the legal form of the UK Fisheries Act is sufficiently supple to avoid this pitfall. Things will go wrong with fisheries legislation. The law of unintended consequences seems particularly active in fisheries. It is vital that when shortcomings are identified that they can be fixed within months, not years.
Some have criticised the Government for aggressive negotiating tactics and for undermining cooperation in international fisheries management. This is misplaced. Withdrawing from the London Convention and the new powers that will be taken through the Fisheries Bill, will reflect the new legal order but joint management of shared stocks is both desirable and inevitable given the geo-political realities. This will require close collaboration between the relevant countries on harvest control rules, TAC setting, quota shares and access arrangements. The difference will be that the UK will be at the negotiating table as an independent coastal state, rather than as one of a number of member states whipped into line by the Commission.
Rebalancing quota shares to reflect the resources within UK waters is likely to be the most testing part of future UK/EU fisheries negotiations. However, the EU already uses the principle of zonal attachment (as opposed to relative stability for internal allocations) when dealing with third countries like Norway, and so by extension, this arrangement will also apply to the UK. It is likely therefore that the focus of future annual fisheries negotiations will be on the scientific information on which to base access and share decisions, and transitional arrangements to ensure compliance with the United Nations Law of the Sea.