Richard North, 08/07/2020  

There cannot be anyone in England, who has a serious interest in Britain's relationship with the EU and is unaware that the Common Fisheries Policy (CFP) has substantial political baggage.

Thus, anyone who comes to this issue surprised that fishing is such an issue in the Brexit/TransEnd talks is either not a serious student of the subject, or is being disingenuous. It is of enormous significance to the Eurosceptic "community" and outweighs any considerations of its economic value.

In particular, the establishment of the CFP represents an egregious example of bad faith by the European Community (EEC) and combines with a prolonged episode of dishonesty on the part of UK ministers in the treatment of the British public during our accession negotiations.

To set the record straight, this blog is publishing the outline of events which went into making the CFP such a sensitive subject, to the extent that it constitutes an historical grievance that has tainted British perception of the EU and its predecessors. Because of the length, it will be published in two parts, the first today and next part tomorrow.

The story starts - or, to be more accurate, doesn't start - on 30 June 1970 when the accession negotiations that were to take us into the EEC were formally opened. With disarming candour, the then chief negotiator, Sir Con O’Neill was to record that "the problem of fisheries did not exist" at the precise point when the negotiations opened. It came later the same day. From then on, O'Neill wrote in the official history of the negotiations, "fisheries was a major problem".

What lay behind his words was the most bizarre episode of the negotiations, politically so embarrassing that much of it was kept secret for three decades.

At the centre of this indisputably scandalous story lies the certainty that, in the months that preceded the applications for entry by Britain, Ireland, Denmark and Norway, a representative of the Six – the evidence suggests he must have been French – realised that the four new applicants would bring with them the richest, best-conserved fishing waters in Europe.

Furthermore, there was already international pressure for a major revision of the international law of the sea, to extend national control of fisheries to 200 miles (or the ‘median line’ between two nations). When this took place, the waters of the four applicants would contain well over 90 percent of western Europe’s fish, some 80 percent in seas controlled by Britain.

It was also the case that, in 1964, some South American countries had extended their fishing limits to 200-miles and Iceland had extended hers to 50 miles. Thus, there was a reasonable expectation that other countries would follow suit, which indeed they did.

The 200-mile extension was agreed by the United Nations Conference on the Law of the Sea (UNCLOS) between 1972 and 1975. Britain formalised her right to a 200-mile limit in the Fisheries Limits Act 1976 – although by then she had ceded control of fisheries to the EEC.

It was actually Nye Bevan who had described Britain as an "island made of coal, surrounded by a sea of fish". But potentially, once the UK had joined the EEC, these waters could bring a valuable resource to augment over-fished seas off France, Holland, Belgium and Germany.

As it happened, the Commission in June 1966 had already considered "the basic principles" for a common fisheries policy (COM (66) 250 final) and had entertained the possibility of using Article 38 of the Treaty of Rome as a legal base for the policy.

Nothing immediately came of this lengthy (512-page) report, but it is known that persons unknown within the Community instructed the Service Juridique of the Council of Ministers to ascertain whether the Treaty of Rome could be used to create such a policy.

The idea at the time was to turn the fishing grounds of the applicants into a "common resource", giving "equal access" to every member state in the Community (National Archives FCO 30/656). The point which its lawyers were asked to address, described as "extremely delicate", was whether a "judicial base" could be established on which could rest a "regulation to give equal access".

Every Community law must be authorised by Treaty powers, the specifics of which for each law are noted in the recitals. The opinion given by the Council lawyers shows that they first considered Article 38 of the treaty, because this mentioned "fisheries products", the only reference to fish anywhere in the treaty.

But "strict exegesis", they concluded, showed that the article could not "cover anything outside the products of fishery and not fisheries themselves". They then turned to Articles 39–43, on agricultural policy, but were forced to conclude that, since these referred only to agriculture, they did not "constitute perhaps the most appropriate juridical basis".

The other articles they consulted seemed even more irrelevant. Articles 52–58 on the ‘right of establishment’ had to be ruled out. To use Articles 59–66 on "services" would not be "absolutely satisfactory", because this would require un gros effort d’interpretation.

Returning to Article 7, which outlawed discrimination between nationals of different countries, they concluded this did not seem, on its own, to "furnish a sufficient base".

Finally, they referred to "catch-all" Article 235 which permitted passing laws which complied with the "objectives" of the Treaty but were not specifically authorised elsewhere. "If one considers that 38–43 of the Treaty do not provide a sufficient legal basis for the Common Fisheries Policy (and the others are unsuitable)", they concluded, "what about 235?"

On the basis of this opinion, it was evident that the treaty offered extremely slender justification for what was being planned. Despite this, a regulation was drafted to define the "equal access" principle, with the intention that it should become part of the acquis before the four candidates lodged their applications.

They would therefore have to accept it, without argument. By any measure this was a trap, aimed at appropriating the applicants’ property, to share it between the Community members.

At a hastily arranged meeting of agriculture ministers on 30 June, the principle of equal access to "Community" fishing waters, "up to the beaches", was thus agreed, with the intention that a regulation to that effect would follow later. That same day the four entrants lodged their applications.

Initially, the only country fully alive to the implications of the move was Norway. For months the Foreign Office did not seem to focus on the issue, or make any efforts to ascertain what its consequences might be for Britain’s fishermen.

Internal notes in July recorded there was "real doubt about the right of the Community … to regulate access to fishing grounds". There was "nowhere any indication that it was the intention… [to] vest in the Community the right to exercise extra-territorial competence" (National Archives FCO 30/656–659 and FCO 954/978).

The Ministry of Agriculture and Fisheries told Con O’Neill they could "not believe the equal access proposals are serious" and suggested they "must be a basis for bargaining".

The first warnings were sounded by a trickle of letters from MPs for coastal constituencies, alerted by their local fishermen. Kent and Essex fishermen were warning that, "if Britain joins the Common Market and French fishermen are given access to inshore waters, they will clean them out".

Throughout the summer such letters continued to arrive, to be side-stepped by Geoffrey Rippon with replies such as "there is as yet no Common Fisheries Policy in the European Community", or "we made our interest clear at the start of negotiations on 30 June".

This latter claim was despite a note from O’Neill dated five days earlier that had said "we see no requirement for a special marker to be put down as regards fisheries policy".

In October an FCO briefing for the Permanent Under-Secretary, who was due to meet prime minister Edward Heath at a top-level Sunningdale conference, claimed that the legal basis for the CFP was "Article 38 of the Treaty".

This was despite the EEC’s Council Regulation, enacting the equal access, having by then been published - Regulation (EEC) No 2141/70 of the Council of 20 October 1970 laying down a common structural policy for the fishing industry. OJ No L.236/1.

Its recital showed the "judicial base" was Articles 7, 42, 43 and 235 of the Treaty. There was no mention of Article 38. Nevertheless, the canard that this Article was the legal basis for the Common Fisheries Policy became lodged firmly in the official mind and was repeatedly cited over the years by authorities ranging from Con O’Neill to Heath himself.

By now, the MPs’ letters were becoming increasingly aggressive in tone. Patrick Wolridge-Gordon, an Aberdeenshire MP, wrote to Rippon on 30 October that there was "not a fisherman who does not think that if territorial limits are to be abandoned, it means the end of an extremely successful and worthwhile industry for the whole coastline of Scotland. It is indeed unacceptable".

Robert MacLennan, MP for Caithness and Sutherland, wrote that the only major herring stocks left in European waters would be "swept away within a few weeks by their so intensive methods of fishing that have cleaned out the stocks from their own waters".

Jo Grimond, leader of the Liberal Party, MP for Orkney and Shetland, and a keen "Europeanist" wrote:
I am perturbed to say the least of it about what is happening over the fishing policy of the Common Market and the curious light it sheds on British diplomacy. I went to Brussels a year ago was told that there was no final policy on fishing but that the Commission would be receptive to the needs of Britain, Norway, Denmark etc. Since then I have been questioning both the Labour and Conservative governments … all I got was flannel.
The government’s response was to work out a formula whereby the protests might be defused. In a memo drafted by D K Rowand of the Scottish fisheries department on 9 November, he admitted that the damage to Britain’s fishermen would be considerable.

However, this official argued that Britain could not afford to spend its "limited negotiating capital" on resisting. He therefore suggested that replies to further letters or Parliamentary questions should indicate that the government was "aware of the anxieties of the fishing industry" and would "bear them in mind in the negotiations".

To that, he added that it was vital not to go into any detail:
The more one is drawn into such explanations, the more difficult it is to avoid exposing the weaknesses of the inshore fisheries position, the only answer to which may be that in the wider context they must be regarded as expendable.
From then on, replies to letters by Rippon and others repeated the same formula: "I can assure you that the Government will take proper account of the importance of the inshore fishing industry to the British economy as a whole". By this means it was concealed from the public that Britain’s fisheries were indeed "expendable".

Continues tomorrow in Part 2.

Also published on Turbulent Times.

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