Richard North, 04/08/2017  

On the back of yesterday's piece on the fishing industry, we get a key intervention by the Guardian which has Environment Secretary Michael Gove telling the Danish fishing industry that vessels from EU Member States will still be able to fish in UK waters after Brexit.

The rationale for this, it would seem, is that the UK fleet does not have enough capacity to catch and process all the fish available in UK waters, apparently prompting complaints from the Lib Dems and SNP that the government's stance on the issue was confused.

The initial comments do not come directly from the environment secretary, but have been conveyed by Danish fishing leaders after they met Gove on Monday. Specifically, Niels Wichmann, head of the Danish Fishermen's Association, has said that Gove told him that the UK: "does not have the capacity to catch and process all the fish in British waters and thus boats from EU nations would be allowed continued access post-Brexit".

This has been contrasted by UK politicians with a statement by Gove in July when he said Britain was "taking back control" of its fisheries by ending its participation in the Common Fisheries Policy.

Needless to say, there is no conflict at all between the statements, as the return of control over UK fisheries does not preclude foreign vessels being allowed to exploit the resource under license. Allowing foreign vessels to mop up surpluses is a normal feature of many national fishing policies.

Thus we have Defra confirming that the plan had always been to allow other nations some access to UK territorial waters after Brexit. But in accordance with the intention to "take back control", the extent of this "could now be decided by the UK".

Wichmann , for the Danish fishermen, says, "It is a logical announcement, but it is still very positive and a little surprising that it comes … so early in the negotiation process". But he said Gove did not make clear whether Danish vessels would be able to keep the same quotas or would have them reduced.

Esben Sverdrup-Jensen, head of Denmark's Fish Industries Association, told the Danish language Jyllands-Posten that while the quotas remained uncertain, it was positive that the UK was "being constructive and has not slammed the door".

It is, however, the Lib Dems' Brexit spokesman, Tom Brake, in a harbinger of the storm of criticism to come, who is making the mischief. Demonstrating a lack of grasp of the issues which typifies UK politicians across the board, he says Gove's comments showed promises by the leave campaign about fishing were being broken.

In his view, "Michael Gove chose to put stopping EU fishing in British waters front and centre of his campaign to leave the EU, yet is now telling Danish fishermen the opposite".

Brake is joined by the SNP which says that the government should clarify what was to happen. Stewart Stevenson, the party's MSP for Banff and Buchan Coast, said the government would not "stand up for rural Scotland's interests" on the issue. He adds: "They might well be trying to keep voters and fishermen sweet at home with all sorts of promises, yet Michael Gove is jet setting around Europe reassuring EU members that there will be nothing of the sort".

Grown-up politicians, however, might have held back the empty rhetoric, recalling that the pre-referendum calls mainly centred around leaving the CFP. There were never any serious suggestions that there should be a free-for-all or that foreign vessels would be excluded from UK waters.

Instead of going for cheap shots, they might have analysed the disturbing statements from the Defra spokeswoman who pitched in to support the environment secretary.

She said the issue was that the UK would be able to control which foreign ships fished within its territory. "Leaving the EU means we will take back control of our territorial waters", she said. "As we have always said, other countries will be able to access our waters – but for the first time in 50 years it will be on our terms and under our control".

The spokeswoman went on to say: "We will allocate quotas on the basis of what is scientifically sustainable, making sure we have a healthy marine environment and profitable fishing industry in the UK".

If this is an accurate rendition of what was said, then there are clear indications that Defra has not got a grip on the post-Brexit policy requirements and is heading for a chaotic exit. The tone of the statement clearly indicates that the department is looking to a unilateral solution, allocating rather than negotiating quotas on the basis of a bilateral treaty with the European Union.

Attractive though it might seem, we are seeing reality creep out of the back door. If the UK seeks to impose a settlement unilaterally, it opens the way to multiple disputes with vessel operators from EU Member States who consider they have been disadvantaged by the new regime. Without the cover of an international agreement, the UK will find it impossible to enforce any quotas it may set, without the risk of them being overturned by the international court at The Hague. 

What we are thus seeing is the strongest evidence yet that the UK government is failing to prepare adequately for the post-Brexit environment. It should be talking in terms of placing commercial fishing on the agenda in Brussels, and initiating talks on a bilateral fisheries agreement with a view to a rapid conclusion.

The reference to quotas is also troubling as it could be taken to suggest that the government has not yet given any thought to the allocation of the fisheries resource, beyond simple quantitative measures. By now, it should be turning its thoughts to operating a days at sea regime, and the adoption of a wide range of technical measures which make quota-based systems of control obsolete.

It is in fact the quota system, at the heart of the CFP, which makes it such a damaging and inequitable policy – implemented for administrative convenience rather than as an effective means of managing the marine resource.

But not only should Mr Gove be looking for a more effective management system, he needs to be acutely conscious of the need for an international agreement, and the difficulty in securing a settlement in the short time available. He also needs to be aware that the absence of an agreement could create a new "wild west" in national waters, with the UK unable to regulate the fishing effort with existing resources.

That he is showing no sign of appreciating what is needed to secure a stable, post-Brexit commercial fisheries environment, and is failing to display anything of the urgency that this issue requires, suggests that we are likely to see a chaotic exit. But then, this will not only be a government failure. The media hasn't a clue and none of the opposition politicians seem to have any more idea of what is needed than the government.

Even Owen Paterson seems all at sea, lost in nationalistic rhetoric which fails to take account of the legal realities of a negotiated withdrawal. He forgets that, when we crafted the draft fishing policy in 2005, this predated the Lisbon Treaty and Article 50. We were, therefore, only considering the technical aspects of fisheries policy.

Where we have a negotiated withdrawal using Article 50, we have to consider the broader legal framework, within the context of treaty law. Whatever technical measures are adopted, they must exist within that framework. This, to me, does not seem to have been considered.

Within that, of course, is the problem of "flag boats" and the controversial practice of quota hopping, where foreign-owned boats registered in the UK and flying the Red Ensign are able to buy UK quota. This is not a problem specific to the CFP but rests with the treaty provisions relating to free movement of capital.

In Iceland, Article 112 of the EEA Agreement (safeguard measures) is invoked to ensure that fishing in their economic zone is reserved for Icelandic nationals and only Icelandic registered vessels may be used. For joint stock companies wishing to engage in fishing, at least half the capital has to be owned by nationals of Iceland. Companies must be domiciled in Iceland, the directors must be Icelandic nationals and at least half the board of directors must live in Iceland.

As to Norway, fishing vessels must be owned by Norwegian nationals or joint-stock companies established in Norway, where all members of the board are shareholders and Norwegian nationals with residence in Norway (and at least 60 percent of the capital is owned by Norwegian nationals). Here, they rely on an OECD derogation.

The UK needs to secure similar provisions if it is to safeguard the UK fleet and prevent quota hopping, but the best and easiest way of securing this is via the Efta/EEA option. This is the very option that the "Ultras", who are so keen to protect British fishing, refuse to adopt.

Unless there is a rapid change in direction on this and the current approach to withdrawing from the CFP, the inevitable chaos which will result could take many years to sort out, creating unnecessary disturbance and uncertainty.

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