One of the key issues to settle in the current Brexit negotiations, and one of the most complex to deal with, is the future of the fishing industry. This is very much a touchstone issue, on which the success of the settlement will be judged, at least in part.
Currently, though, ministers are under the illusion that they can create a post-Brexit regulatory environment by unilaterally repatriating the CFP acquis
and applying a modified version to the UK fleet as a stand-alone management policy, sanctioned by the EU Withdrawal Act, once it has been enacted.
As explored in this post
, though, such a stratagem is deeply flawed. The key EU legislation is so Brussel-centric that, by the time references to the Commission and other institutions were removed, and the systems are re-orientated to suit UK requirements, it would be easier to start from scratch, writing an entirely new policy.
This flaw, however, is the least of the UK's problems. Although the likes of Bill Cash and his "Ultra" colleagues yearn for exit day when they can run up the Red Ensign and kick the foreign fishing boats out of UK waters, they will find that things have changed a little since the reign of Elizabeth I, when Francis Drake could complete his game of bowls before confronting the Spanish Armada.
What they will find is that, although we are only bound by the CFP while locked into the EU treaties, leaving the EU will not bring them the relief they expect.
The emergence of the new world order since the end of the last major global conflict in 1945 has elevated international law to a status where true sovereignty, in the traditional sense, no longer exists. In all respects, it is superior to domestic law and, where conflict exists, domestic law must be altered to conform with international norms.
Ending the writ of the EU treaties, therefore, will create what I have termed the "double coffin-lid" scenario, where I envisage a scene in a horror movie where a man finds himself (for reasons we need not explore) locked inside a coffin. By prodigious effort, he manages to break through the lid of the coffin only then to find that there is a second lid, preventing his escape.
So it is with the EU treaties. Once we break out, what we will find in our relations with the European Union and its Member States is that we are then bound by international law, which in many cases will take the place of and, in part, replicate provisions of the treaties.
One of the main instruments, in respect of fisheries management, will be the United Nations Law of the Sea (UNCLOS), and in particular the likes of the Straddling Stock Agreement
. But also of huge significance may be the doctrine of acquired rights, which carry over rights acquired though a treaty to an indefinite period after the treaty has ceased to have effect.
There is considerable dispute as to the degree to which such provisions may or may not apply, particularly in relation to the Vienna Convention on the Law of Treaties (VCLT), which many consider to be the codification of what is termed "customary law", giving it an effect even where parties are not signatories to the Convention.
While some argue against the application, as here
in a House of Lords select committee report, others – as here
in a European Parliament report, argue differently.
With no one in a position to state definitively where the law actually resides
(despite the huffing and puffing of self-important academic lawyers), any final test will require hearings in the International Court and The Hague, in the event of a material dispute.
What that means in practice is that the UK would be unwise (to the point of being reckless) if it sought unilaterally to replace the CFP with domestic law and then sought, again unilaterally, to dictate terms of access to vessels of EU Member States. Before even thinking of framing its own law, the UK will need to negotiate a new bilateral fisheries agreement with the European Union.
The nature of such an agreement is set out cogently and in some detail in this report
again from the European Parliament (see Section 2.3).
Such an agreement would establish a preferential regime with EU Member States which currently enjoy access to UK waters, and would regulate issues relating to their access to the waters and the fisheries resources.
In terms set out in the EP report, such an agreement would be based on the recognition of the UK's rights to the living resources in its waters (determination of fishing opportunities, harvesting capacity and the resulting surplus), subject to the provisions of international law (need to achieve maximum sustainable yield, recognition of historical fishing rights of third countries, obligation to cooperate and negotiate with a view to taking the necessary measures for the conservation of living resources).
Within the context of a framework agreement, detailed management provisions and variables, such as the annual total allowable catch and the allocation of fishing effort, could be established by means of a series of protocols capable of being varied by a joint standing committee representing the contracting parties.
This then would be a bare minimum to allow for a smooth, post Brexit transition of fisheries to UK control. Should, on the other hand, the UK be reckless enough to pursue unilateral action, it might find that EU Member State vessel owners, with previous access rights, refused to recognise or conform with UK domestic law.
The effect of this would be analogous to the Icelandic Cod Wars, with the UK having to deploy naval assets to enforce its laws, with the eventual outcome a reference to the court at The Hague and an imposed settlement which may be considerably less favourable than it could have gained by pre-Brexit negotiation.
The UK government (and the UK fishing industry), therefore, has everything to gain by seeking a negotiated settlement, and a great deal to lose by taking unilateral action.
For there to be a new agreement, though, there must be negotiations and, within the framework of the current Brexit talks, not only are there no discussion scheduled, fishing and the CFP is not even on the agenda.
The fishing industry, therefore, has a real problem. While Gove is gadding off
to the Faroe Islands this week, with a trip to Iceland planned as a follow up, his staff should be in Brussels seeking assurances that a fishing agreement will be placed on the Brexit agenda, with sufficient resources allocated to ensure that speedy talks are undertaken.
It is then for the UK government to frame constructive and realistic proposals for a new treaty, and lodge them with Brussels in good time for them to be circulated and discussed by the Commission and Member States before talks start.
But therein lie further problems. Even with good will and determination, talks on a fishing agreement cannot start until the first phase of the talks is concluded, with an agreement in principle on the financial settlement, the status of expats and the Irish border. At the very earliest, this will not be before the end of the year.
Even then, with its lack of experience in crafting complex fisheries agreements, the civil service might find itself hard put to deliver a firm UK proposal by then. But, even if it does, it is extremely unlikely that a full agreement could be concluded by 29 March 2019, leaving us with the very real prospect of UK waters being unregulated.
And only when an agreement has been concluded can the government set about finalising its own fisheries policy, gaining the necessary Parliamentary approval and the assent of devolved governments, and put in place the systems and resources necessary for its administration and enforcement.
That leaves us in the situation where we will almost certainly have to negotiate transitional provisions which, in the absence of a full bilateral agreement, will probably require us to vest continued management of the EEZ in the European Commission, tempered by consultation rights and veto provisions, while the current status quo
This is a very far cry from the ambitions of the "Ultras" and may be a very hard sell to the British people, with the media quick to publish charges of "betrayal". But the prospect of a fisheries "war", and the inability to regulate our own waters until the matter has been settled by a foreign court, is even less attractive.
Without swift and decisive action by the UK government, though, that is going to be the inevitable outcome. Basically, we have the choice of the easy way – a negotiated fisheries agreement – or the hard way, our fishing grounds becoming the "wild west", dependent on an imposed settlement by the international court.
If it is to be the easy way, there is no time to lose.