Editor's Note: The use of the expression, "TCA" in this series of posts refers to the "Trade and Cooperation Agreement" signed between the UK and the EU on December 24th 2020.
Philip Gegan
Our fishing industry has been among the worst hit of all our industries as a result of membership of the European bloc. It’s endured 48 years of having our fishing waters plundered by foreign vessels. Fishing businesses that have been in the same family for generations have been decimated by Brussels dictats, red tape, and remorseless over-fishing by EU-based trawlers.
The EU’s brilliant answer to over-fishing and depletion of fish stocks is to list every conceivable species of fish, from Alfonsinos to Whiting (Celtic Sea), issue quotas, and require any excess fish caught to be thrown back into the sea, even though such fish are long since dead by the time the catch is weighed.
In Scotland a third of fishing boats are now tied up at their harbours. The Scottish fishing industry is estimated to be losing £1 million per day. This seems set to continue for a long time before the creaky wheels of the British civil service gets around to doing anything about it.
Throughout the withdrawal negotiations, the EU negotiators sought to keep full access to British fishing waters without making any concessions in return. So far, they’ve succeeded in doing just that.
The whole subject of fisheries is dealt with not only in Heading 5, which has nineteen articles. It’s also covered in four Annexes, occupying six pages. Anyone needing to refer to the Agreement’s provisions for our fishing industry has to shuttle to and fro between pages 261 and 899. Let’s take an in-depth look at what these say, to gain an insight of what the rest of the massive Agreement is like.
Loss of sovereignty illustrated
Article 1 confirms that the sovereign rights of coastal states are limited already as they have to conduct their fishing in accordance with the principles of international law, including the United Nations Convention on the Law of the Sea of 10 December 1982. As all parties have (regrettably) signed up to that Convention then it’s puzzling as to why it should be repeated here.
Article 2 contains “objectives and principles” that both sides should follow (so we’re not free to make our own rules and standards). These cover the painfully obvious for the most part, such as not destroying fishing stocks by over-fishing, following the best available scientific advice when making management decisions, and co-operating with each other to ensure the conservation of shared fish stocks. This Article occupies a full page of the Agreement. We should note here that it is European fishing vessels that have become notorious over the last few decades for recklessly plundering the fishing stocks of wherever they happen to be fishing, including UK waters.
Article 3 deals with definitions (another page and a bit) and Article 4 covers Fisheries Management, which contains much of what I always refer to as the “bleedin’ obvious”. An example of this is where it refers to each party enforcing the “objectives and principles” of Article 2 in its own waters, saying
“A Party shall not apply the measures referred to in paragraph 1 to the vessels of the other Party in its waters unless it also applies the same measures to its own vessels.”
So one party can’t ignore the rules in its own waters and yet try to insist that the other party obeys said rules. As I said, the “bleedin’ obvious”. I really do believe the EU will one day set out regulations covering how its citizens may breathe.
Tied to the EU in perpetuity
Article 5 is equally superfluous. Under it, each party has to give the other a list of vessels that it wants permission for to fish in that other’s waters. After that has been done, “the other Party shall issue authorisations or licences to fish”. So there seems to be no power to refuse such a request. As very few British vessels fish in European waters, and yet there are massive numbers of European vessels always fishing in British waters, we know in whose favour this article works.
Article 6 commits the UK to annual “consultations” with the EU on such matters as agreeing the “total allowable catches” (“TACs”) for each party. Naturally, each species of fish, or “stock” is listed in a separate annex to the Agreement. Three annexes, actually, this being the EU we’re talking about. Either side can demand an additional such consultation at any time if it thinks fit.
There’ll soon be more Eurocrats talking about fishing than there will be European fishermen fishing illegally in UK waters. This article is another example of how the UK is tied to the EU in perpetuity. We never had to have these regular “consultations” before we were taken into the EEC in 1973, so why do we need to have them now?
Article 7 provides for the aforementioned “provisional total allowable catches” in any year in the event of the sides failing to come to an agreement in the time allowed. Different provisions, of course, apply to “special stocks”, which then have to be defined.
Each party, in effect, sets its own “provisional TAC” (“which shall not exceed its share as set out in the corresponding Annex”) but then has an obligation to tell the other party what it is in each case. How’s that for regaining our national sovereignty and freeing ourselves from EU bureaucracy?
Annual consultations, the “specialised committee”, and more loss of sovereignty
Article 8 commits both parties to further annual consultations (and additional consultations as and when called for by one or the other) to agree the extent to which each side will grant the other access to its fishing waters. How much will all these “consultations” cost, and who will have to pay the bill? This article alone binds the UK indefinitely to the requirement that we adapt our fishing practices to accord with what has been agreed between two lots of bureaucrats, supposedly each lot representing their side’s fishermen.
Article 9 covers a situation where one party refuses to allow the other party access to its fishing waters. The parties have to consult under the auspices of the “Specialised Committee” and an arbitration tribunal has to be appointed. How are the members of this tribunal selected? The answer, presumably, is in Article INST.14 [Arbitration procedure] of Title I [Dispute settlement] of Part Six, without having recourse to consultations in accordance with Article INST.13 [Consultations]. Got that?
Article 10 has special provisions relating to the Channel Islands and the Isle of Man, none of which islands should be of any further concern to the European Union with regard to fisheries or anything else. In short, if the UK wants certain provisions of the Heading relating to fisheries not to apply to any of these islands then it has to apply to the “Partnership Council” for a ruling. More loss of sovereignty.
Article 11 provides for more red tape for fishing vessels from the Channel Islands landing fish in EU member-states’ ports.
Article 12 commits both parties to seek advice from the “International Council for the Exploration of the Sea” (ICES) within six months of the Agreement concerning the “alignment of the management areas” and other matters. More loss of sovereignty, and not just to the EU.
EU retains control via “joint committees”
Article 13 covers shares of TACs for “certain other stocks”. As these shares may fluctuate from time to time, each side has obligations to notify “the relevant States and international organisations” of its shares each time they change. This Article, though short, is drafted in an extremely shoddy manner, with undefined references to “relevant multilateral fora” and to the “Partnership Council” having powers to amend the Annexes that define the various types of fish that the whole Fisheries Heading refers to in the first place.
Article 14 covers “remedial measures and dispute resolution”, of which this Agreement promises plenty. As with other parts of the Agreement, everything conceivable is covered whilst at the same time leaving the door open to ample cross-interpretation and dispute.
Under Article 15 we are bound to share data with the EU (as it is with us, supposedly) so as to enforce the whole fisheries heading, “subject to each Party’s laws” (our laws being different from those of the EU, what could possibly go wrong?).
The “Specialised Committee on Fisheries”, referred to in Article 9, is given extensive powers under Article 16. It may “adopt measures, including decisions and recommendations” on a wide variety of matters. Who would expect anything else?
It is another example of how the EU has presumed for itself the power to retain control over vital areas of British policy through the establishment of joint committees, consisting of members from the EU and from the UK, and for the retention of such committees indefinitely.
You may think that, because it’s a joint committee, the UK’s sovereign rights will be safeguarded. Let’s hope they will be, indefinitely into the future, and that all our representatives on these various committees will be as fierce and committed to the preservation of our national sovereignty as we ourselves would be. Personally, I’m not going to bet any money on it.
EU wants our Channel Islands
There’s a ray of hope in Article 17. It covers how the Heading itself can be terminated. “Each Party may at any moment terminate this Heading, by written notification through diplomatic channels.” The amount of notice required is eight months plus the remainder of the then current year. This could mean nearly 20 months in practice. Why not adopt a simpler way of expressing the amount of notice required? But remember, again, this is the EU we’ve been dealing with. Again, extensive provisions apply to the Channel Islands and the Isle of Man. Do I detect a measure of envy on the part of the EU on account of the Channel Islands belonging to the UK when they are unarguably closer to the Continent? Blame William the Conqueror for that!
Article 18 provides for the implementation of the Heading to be reviewed jointly “four years after the end of the adjustment period referred to in the Article 1 of Annex FISH.4”, and then after every subsequent period of four years. And you thought the period from the referendum until we “finally left” on December 31st 2020 was long drawn out! Complete extrication of our country from the clutches of the EU is a long, long way off. The EU negotiators here are clearly signalling that they expect the UK to be back inside the EU before long.
So that’s it, right? Not so fast. There’s a final Article in this Heading. Article 19 is headed “Relationship with other agreements”. Yes, this part of the Agreement has a relationship with other (existing) agreements! Needless to say, it supersedes or replaces any such.
It’s funny how we never needed agreements like this before the EU came along. But then that was in the days when national governments were sovereign, and made laws for the benefit of their subjects, without any hidden agenda remorselessly driving us all in the direction of a one world government.
Just as if Brexit had never happened
In summary, this part of the Agreement keeps us tied to the EU indefinitely. It’s true that in theory we have the power to terminate it unilaterally (as does the EU), but how likely is it that the career politicians in Parliament and Downing Street will defy all the pressures that would inevitably be applied to them at the first sign of such a rebellion?
You have to look at “ANNEX FISH.4” for some of the small print. This is on page 899. It establishes an “adjustment period” lasting from 1st January 2021 until 30th June 2026. During that time it will be, for fishermen of both sides, just as if Brexit had never happened.
Forty eight years of subjugation to the EU have ruined our fishing industry and brought it to the brink of collapse. The Heading and Annexes on fisheries, taken together, is a clear example of how the EU has dominated the drafting of the Agreement, and in doing so has treated the UK as if it were still a “member-state” that has to be regulated so as to be subservient to the EU itself.
It didn’t take long for the EU to display its vindictiveness towards the UK over fishing. In the opening days of 2021, for no reason, it imposed a ban on live shellfish exports from the UK. For some reason all shellfish caught in British waters has for a long time been sent to the EU for processing, and the EU Commission saw its chance. This shellfish remained the exact same product as it was up to December 31st 2020.
Wearing us down
If this is how the EU is going to behave towards us in the post-Brexit world then perhaps it’s time for us to retaliate. For starters, we could ban all EU fishing vessels from operating in UK waters, and do our fishing industry a huge favour at the same time.
Unless this whole “Trade Agreement” is repudiated then it will be used to gradually wear down the people who have to abide by it in one way or another until the prospect of surrendering our national sovereignty to the EU again will seem like a blessed relief.
In Part 5 (the final part) of this series of posts I will be taking a look at what we can expect from the EU now we’ve supposedly left it.
