Leaving aside the possibility of a hiccup in these politically turbulent times, it is now possible that the UK will leave the EU on 31st October, or shortly after, within the context of the UK/EU withdrawal agreement settled in Brussels last week.
If this is the case, the UK will then enter a transition period (aka implementation period) to the end of 2020, during which the UK will legally be outside the EU but remain closely aligned to it.
For the fishing industry, two important questions arise from this new set of circumstances:
1. How will the UK be treated during the transition period, when it no longer has a seat in the EU’s decision-making fora, including the Fisheries Council?
2. Will the terms of the longer-term future economic agreement between the UK and the EU, to be agreed during the coming year, ensure that the UK can act an independent coastal state, with the rights and responsibilities ascribed by the UN Law of the Sea to that legal status; or will the UK fishing industry again be sacrificed, as it was in the 1970s, for other national priorities?
There is no crystal ball to help us with these questions. And we do live in unpredictable times. From what we know and what we can surmise, however, the situation is as follows:
Transition
For the duration of the transition, the UK will remain subject to the whole body of EU law, including the Common Fisheries Policy. The UK will not have a seat at the table when any new EU laws or international agreements are made. This is particularly significant for fishing, where the annual cycle of total allowable catches and quotas can carry huge implications for the immediate future of the fleets.
An obligation on the EU to “consult” the UK during the TAC setting exercise is written into the withdrawal agreement, as is an obligation for the parties to act in good faith towards each other. An immediate priority, now that the withdrawal agreement has been signed (if and when ratified) is to obtain clarity on what consultation, in this context, actually means. The EU will continue to speak for the UK in international fisheries negotiations, but the UK will no longer formally be part of the process through which the Commission and the member states coordinate the EU position. As part of EU coordination, the UK was but one voice in shaping policy – but it was an important voice. Outside the room but consulted as a third party could mean a weaker, or a stronger position. All parties will have in mind what the implications of immediate decisions will carry for future arrangements.
An extremely difficult set of circumstances this autumn means that crucial decisions must be taken during the annual EU/Norway bilateral negotiations for a fisheries agreement in 2020, as well as the EU Fish Council in December. How these decisions are made and the content of these decisions, therefore carry the utmost consequences for the UK fleets in 2020. They involve:
⦁ Dealing with scientific advice for a 70% cut in the TAC for North Sea cod
⦁ Zero catch advice/ bycatch reduction plans for some key stocks such as Celtic Sea cod and Irish Sea whiting
⦁ The EU requirement to set quotas to achieve maximum sustainable yield within one year and the threat of legal challenge by one or more environmental NGO
⦁ The provisions of the EU landing obligation, and the potential for chokes in mixed fisheries
Finding a way through this political and legal quagmire would not be easy or straightforward even in normal times. The jurisdictional issues and compressed timeframe between now and the end of the year only intensify these pressures.
Long Term Economic Agreement
So far as fishing is concerned, the withdrawal agreement and associated political declaration, just signed, varies little from that signed when Teressa May was Prime Minister. The EU recognises that the UK will be an independent coastal state with regulatory autonomy, albeit subject to the provisions of UNCLOS. The need for special consultative arrangements in relation to the annual quota setting process is acknowledged. It foresees a future fisheries agreement to be made within the broader context of a wide-ranging long -term economic agreement.
The Commission and EU 27 member states have made no secret that it is their intention to make that free trade deal contingent on the status quo on access arrangements and quota shares. By contrast, the UK has laid out in the Fisheries White Paper, the UK’s intention to use its rights under UNCLOS to control access over who is permitted to fish within the UK exclusive economic zone, and to negotiate quota shares which more closely reflect the resources in UK waters. Currently 3000 EU vessels fish within the UK’s EEZ, taking around two thirds of the catch. EU fleets fish about six times as much in UK waters as UK vessels fish in EU waters. The UK seeks a more balanced and fairer arrangement, consistent with the status of an independent coastal state.
It is somewhat of an understatement, therefore, to say that there is a very wide gulf on fishing rights, between the UK and the EU. It is worth recalling that fishing rights and Gibraltar were the last two outstanding issues to be resolved when the original withdrawal agreement was signed. Fishing is extremely high up the UK’s political priorities. There is a cross-party consensus that fishing was very shabbily treated in the 1970s, and the UK’s departure from the EU, provides an historic opportunity to address some of the damage done. In many eyes, fishing is a litmus test for whether Brexit was worth it. It has a symbolism that goes well beyond the immediate issues of who fishes where and for how much. The UK fishing industry is united in its conviction that the UK must retain the scope to act as, as well as having the formal legal status of, an independent coastal state.
The stage is set therefore, for a major political conflict ahead over fishing rights, as a framework agreement is thrashed out. The UK will by default, have the status of an independent coastal state. The EU will seek to limit and fetter that status. Any UK government will want to avoid the odium associated with another sell-out, but the EU can be expected to play hardball, using trade to the extent that it can, to keep the UK aligned as closely as it can to the status quo. Why wouldn’t it, when the current asymmetrical and exploitative arrangements work so well to its advantage?
The UK has made plain that it regards fishing rights and an EU/UK trade agreement as entirely separate and has international precedence on its side. There are no examples of any country permitting free access to its natural resources as part of a trade deal.