FISHING IN TRANSITION

An update on negotiations and likely outcomes for the fishing and seafood sectors

Fishmongers’ Hall, London | 23 April 2018

1 ABOUT THE SEMINAR

Blue Marine Foundation, a charity that partners with fishermen to establish more sustainable methods of fishing, shares with a number of fishing organisations a view that the UK government could have done a better job of managing the expectations of the fishing industry since the 2016 EU referendum result.

British fishermen were promised many things by Blue Marine Foundation, with its partners on the the Leave campaign, for example; that the entire steering committee of this seminar, felt that it UK EEZ would be brought under exclusive UK would be helpful for the UK fishing industry to hear jurisdiction from Brexit day and that UK fishers a realistic independent assessment of the current would see huge increases in quota allocation. status of fishing in the Brexit negotiations, and the likely outcomes for the industry to balance any Key figures in ’s government have unrealistic government spin. continued to repeat and even heighten these expectations after the referendum result, despite Partnering with the Worshipful Company there being scant evidence of UK negotiators giving of Fishmongers and a number of fisheries fishing any priority during negotiations. representative organisations (listed on page 22), we invited a wide range of inshore and offshore As a result, when the UK-EU transition agreement fishermen to listen to a variety of expert speakers was secured in December 2017 the UK fishing discuss the politics, trade and legal aspects of the community felt betrayed by an agreement that Brexit negotiations. This report is a summary of extends the Common Fisheries Policy status quo these presentations. in UK waters for nearly two years after Brexit day, despite the UK no longer having any representation in the EU institutions.

You can see recordings of all the presentations at bluemarinefoundation.com/films

FISHING IN TRANSITION 3 SUMMARY POINTS

POLITICS TRADE

• The UK’s overall negotiating position • Extreme outcomes are now very unlikely: • It is expected that there will be zero • Dunkirk only has capacity for 15 against the EU is not strong UK is highly unlikely to remain in the EU. tariffs on all fish products under a inspections a day UK is also highly unlikely to leave without UK/EU agreement, even a basic FTA • Fishing is one of the few cards the a deal, as UK has not made requisite • All UK fish exports to EU would have to UK has to play preparations to allow no-deal without • ‘Rules of Origin’ will still prove a be re-routed to Rotterdam or another severe economic damage significant challenge for UK seafood BIP-ready port until the ports regularly • It is unlikely that the UK Government will processing industry in any scenario used for UK fish imports are upgraded use the UK’s fishing card to win greater • If the UK sticks to current red-lines outside a concessions for the fishing industry (‘money, laws and borders’) then the only • 21 month transition is necessary to put likely outcome is a Canada style free trade • Leaving the ‘regulatory union’ of the this BIP infrastructure in place • Fishing will likely be traded by the UK agreement (FTA). If UK red lines change, single market will be a significant for a win elsewhere in the negotiations EU deal options increase challenge for fishermen, as all animal • UK leaving with no deal would impose products entering the single market can these requirements overnight from • EU will not allow the UK to pick the parts • It is impossible to reconcile more than two only pass through specific border 30 March 2019 of the EU it likes and discard the bits it of UK’s three current demands re Northern inspection posts (BIPs) doesn’t like : No hard border, no border in Irish • UK could negotiate a ‘+’ style EEA sea, UK Customs Unions exit. One of these • Neither Calais nor Eurotunnel have BIP relationship with customs union and • Neither the EU nor UK are being honest will have to be dropped facilities to accept fish from non-EU fisheries agreement, which would put UK regarding the length of transition period, (or non-EEA) countries outside of CFP but keep seafood trading which will have to be much longer than to • This uncertainty around rules roughly as they are now December 2020 needs to be resolved before the Withdrawal and Transition Agreements can be agreed by October 2018

4 FISHING IN TRANSITION 5 SUMMARY

POINTS CONTINUED

DEVOLUTION LAW

• The EU currently has competence over • ‘Fisheries management and support’ • All EU laws will be transferred from EU • An effort based system (like ‘Days at Sea’) 153 policy areas which, outside the EU, is one of these 24 areas where London to UK statute book and then gradually is considered less likely given EU/EEA will fall under devolved administrations has expressed a preference for greater amended or repealed preferences for quota based systems centralised control. • UK Government has said that, of the • It could take around 20 years to unpick • Relative Stability will remain in place 153 competencies, 24 will require • This may provoke conflict with the all EU legislation from UK law throughout the transition period London replacing Brussels as the central Scottish Government in particular regulatory authority. • Total Allowable Catch and quota for shared • Neighbourhood or ‘voisinage’ agreements stocks will continue to be negotiated (0-6 miles) and the London Convention annually, as they currently are with (6-12 miles) have both been superseded non-CFP members by CFP and UNCLOS

• It will take many years to reduce EU • London Convention therefore vessel access to UK waters – it may not unlikely to be of use to UK be possible to reduce EU access at all • Voisinage agreements will need to be SEAFOOD • Abolishing ‘flagships’ and introducing continued , but will be negotiated nationality requirements for vessel between UK and EU as a whole, ownership is unlikely whereas currently negotiated between UK with each member state bilaterally • Quota holding is a quasi property right • UK exports most of what we catch • has been clear that if and any attempt to withdraw it will and import most of what we eat EU vessels lose access to UK waters, likely require compensation UK exporters will lose access to EU markets • 80% UK fish (by value) exported to EU. • Options for fairer quota allocation Imports are mostly from outside of EU • Outside the Customs Union the UK could include replacing ‘Relative Stability’ with liberalise access to fish imports from geographically based ‘Zonal Attachment’ This means an imbalance in negotiating • other countries (not currently operating within the CFP) leverage: EU can significantly damage UK’s fish exports, UK unable to do same to EU’s fish exports.

6 FISHING IN TRANSITION 7 PROFILES OF SPEAKERS

CHARLES GRANT SAM LOWE MADDY THIMONT JACK ANDREW OLIVER ANDREW KUYK RICHARD BARNES CENTRE FOR EUROPEAN REFORM CENTRE FOR EUROPEAN REFORM INSTITUTE FOR GOVERNMENT ANDREW JACKSON SOLICITORS UK SEAFOOD INDUSTRY ALLIANCE UNIVERSITY OF HULL Charles is widely considered Sam Lowe is a research fellow Maddy Thimont Jack specialises Andrew is a Hull based solicitor Andrew is Director General of Professor Barnes is an to be one of the best-informed at the Centre for European on devolution at the Institute for and is a recognised expert in the the Provision Trade Federation internationally-recognised expert commentators on Brexit in the UK. Reform. He works on trade issues, Government, a think tank that field of commercial fisheries both (PTF), a leading UK food trade in international law and law of the He was a founder of the Centre with a focus on Brexit, customs works to make government more nationally and internationally. association, where he also heads sea. He has been invited to give for European Reform (CER), and regulatory barriers. Prior to effective. As part of the Brexit He acts for vessel owners in the fisheries work on behalf of the advice to government bodies in a think tank, in 1996 and in January joining the CER, he led work on team she has continued to work sale, purchase and financing of UK Seafood Industry Alliance. the UK and overseas, NGOS and 1998 he left The Economist to trade, Brexit and environmental on the implications of Brexit for vessels, licences, fishing quota Andrew is the UK Board member the private sector on a wide range become the CER’s first director. issues for Friends of the Earth devolution, as well as the role of and fishing effort. of AIPCE-CEP, the European of marine law matters. He is the author of numerous CER and is a co-founder of the UK Parliament in the Brexit process. Fish Processors and Traders Andrew also acts for UK, European His views on current issues, such as publications, including Russia, Trade Forum. Association, and chairs Working She is the lead author of the recent and International banks in Brexit and fisheries law, have been China and global governance Group 2 (Markets and Trade) of He is a visiting research IfG publication Devolution after connection with the funding of the sought by international media, (2012) and How to build a modern the EU Market Advisory Council fellow at The Policy Institute, Brexit: Managing the environment, purchase of vessels and licences. including the BBC, the Wall Street (2013). (MAC). King’s College London, and holds agriculture and fisheries. He regularly represents owners Journal and the New York Times. Charles joined Euromoney, the an MA in Conflict, Governance and skippers in connection with Andrew has extensive experience Professor Barnes has given financial magazine, in London in and International Development the breaches of fisheries legislation of EU affairs during a lengthy UK papers at leading universities 1981. He moved to The Economist from the University of East Anglia. as well as in breaches of merchant Civil Service career dealing with a and institutions, such as the in 1986, where he wrote about the shipping rules. range of food, farming, fisheries, Sam comments regularly on trade Lincoln Institute (Cambridge, City. In 1989 The Economist posted trade and environmental issues, issues in the print and broadcast Andrew advises on marine US), BIICL, and the Stockholm Charles to Brussels, to cover the including diplomatic postings media, including the Financial environmental matters including Resilience Centre. European Community. in Brussels and Paris. He was Times, The Times, The Guardian pollution, environmental First Secretary (Fisheries) in the In 1993 Charles returned to and BBC Newsnight. He has given protection and marine spatial UK Permanent Representation The Economist’s London office, oral evidence to UK Parliament’s planning. He is also an expert in to the EU at the time of the soon becoming defence editor. Brexit, International Trade and connection with Fisheries and original Common Fisheries Policy His biography of Commission Environmental Audit select Regulating Orders, the Marine negotiations. Prior to his current President Jacques Delors committees and the European Coastal Access Act 2009 and role, Andrew was Director of (Delors: Inside the House that Parliament’s trade committee. Marine Consenting procedures. Sustainability at the Food and Jacques Built) appeared in 1994. Drink Federation.

8 FISHING IN TRANSITION 9 A POLICITCAL UPDATE ON BREXIT NEGOTIATIONS

Charles Grant of the Centre for European Reform delivered a factual Some commentators, including Charles Grant, In terms of the final deal, Grant rules out ‘extreme believe that the EU must be careful not to push outcomes’. That is, we are very unlikely to remain update on the Brexit negotiations so far, and his political assessment the UK too hard. The EU must, in Charles Grant’s in the EU, or to crash out with no deal at all. of them. The following summarises his remarks and in some cases words, avoid a “Versailles Brexit”, in which the That effectively limits us to either a ‘Norway’ solution stronger negotiating partner humiliates the weaker. (in the single market but out of the customs union), expands upon his themes and adds a further range of perspectives. This would not provide the positive basis needed or a ‘Norway-plus’ (in both the single market and the for building a close partnership between the customs union), or a more separate relationship via a EU and UK in the future. ‘Canada’-style free trade deal, which would see the UK outside of both the EU single market and But few EU Member States share this view and customs union. most believe that the UK should be treated robustly. Grant identifies both ‘high principle’ and ‘low politics’ If the UK sticks to its current red lines in the EU’s approach. France and Germany, (in particular, ending free movement of people, in particular, firmly believe that the EU must leaving the jurisdiction of the European Court of safeguard its principles, which means that the UK Justice (ECJ) and having the freedom to diverge from cannot cherry-pick the elements of the EU that it EU rules) then the only options is a Canada-style likes. But Grant and others also detect an appetite deal, which would likely preserve -free trade in all for ‘punishment’, whereby the EU does not want goods but impose significant restrictions on services – the UK to fail, but does not want it to flourish either. in particular financial services. The EU will also ensure This is not for vindictive reasons per se, but to ensure it has mechanisms to sanction the UK if it undercuts that other member states do not see a country doing the EU on, for example, environmental standards better outside the EU than inside. In any event, or state aid. Both sides may seek to add a security the EU, like the UK, is driven by politics more than agreement to the deal. economics, and many in Brussels are prepared to take Some key uncertainties remain. In particular, the an economic hit in order to stop the UK having its Irish government is pressing the EU to hold the UK cake and eating it. In terms of the immediate future, The first point Charles made is that very few people Rather, it is a card that would be traded for something firmly to its commitment not to necessitate a hard both the UK and the EU are misleading people in either London or Brussels are talking about fish. the UK government considered to be more valuable. border. As Grant notes, the UK demands three about the transition. That is, both sides have stated This is partly because fishing represents well under outcomes: no hard border, no border in the Irish In general, the negotiations are following a familiar that the transition will end on 31 December 2020 0.5% of the UK’s GDP, and the issue has so far been Sea, and a customs union exit – but only two of pattern, which is that the EU takes a strong position, (the UK initially wanted March 2021), but in eclipsed by broader economic concerns. those are possible. A majority of commentators the UK firmly resists it, and then at the last minute reality it will have to continue for much longer (and most people in Brussels) therefore believe that Nevertheless, some officials and commentators the UK concedes. Fisheries are a case in point: than that. Alternatively, it will end and a lengthy the whole of the UK will have to remain in a customs have proposed fisheries as a ‘card to play’ in the Environment Secretary Michael Gove promised the ‘implementation’ period will then begin, in which union with the EU after the transition. This could spell negotiations, in the sense that the UK has industry that the UK would depart the Common we will still adhere to EU rules and regulations while political turmoil in the UK, with potential for Cabinet something the EU wants: access to British waters Fisheries Policy (CFP) on Brexit day in March 2019, the final deal is being agreed. The reasons for this resignations (unless the situation can be fudged and fish stocks. While the EU wants access to even though the EU guidelines have been clear for are clear: even the EU’s basic free trade agreements yet again). UK fish, the UK wants access to EU markets many months that a standstill transition would require (FTAs) have taken around five years to conclude, – which somewhat neuters the UK’s leverage. the UK to remain in all existing instruments and the UK’s new customs and immigration Second – and more bluntly – the fisheries card (but without voting rights). Gove duly raised the infrastructure will in any event take at least that long would almost certainly not be deployed to win hopes of UK fishers and their supporters, only to to implement. The UK denies this because it wants greater concessions for the UK fishing industry, disappoint them when the government conceded to avoid upsetting Brexiters who want out as soon as still less to coax or force the EU into accepting that we would adhere to the CFP in full until the end possible; the EU, meanwhile, wishes to pretend that the UK negotiating position. of the transition. it can begin a new multi-annual financial framework in 2021 without any UK involvement.

10 FISHING IN TRANSITION 11 MORE THAN JUST TARIFFS : EXPORTING TO THE EU AFTER BREXIT

Sam Lowe of the Centre for European Reform presented an they may find themselves unable to re-export it if Given these uncertainties, despite the unpopularity those goods were considered insufficiently British. of the transition period amongst the fishing industry, analysis of the Brexit negotiations and what it might mean for fishing. This could represent a significant barrier to trade. the 21 months of stability and continuity after Brexit day that the transition guarantees is in fact An even more challenging problem would be the essential for the UK fishing industry if the UK and UK’s exit from the single market. (As with the customs EU are to put the requisite infrastructure in place to union, the Irish border issue may ultimately ensure ensure economically damaging transit delays are that we remain in a single market for goods, which minimised. obviates the following problems, but at the moment this remains uncertain.) Withdrawal from the single The alternative to a transition, meanwhile, is no deal at market creates additional barriers to trade - not with all, which would impose overnight tariff and non-tariff tariffs, but regulations and hygiene checks. barriers on UK fish exports (and imports), causing All animal products entering the single market considerable financial damage to the industry. (that is, the EEA, which includes Norway, and Some fishing industry advocates should keep this ) can only pass through specific border economic reality in mind before encouraging the UK inspection posts (BIPs). Calais and Eurotunnel Government to walk away with no deal. currently have no BIP facilities. Dunkerque currently A Norway-plus arrangement, which offered an only has capacity for 15 checks per day. Fish could EEA-type relationship with an added fisheries be re-routed to Rotterdam, but that would add agreement and customs union, would put the UK considerable expense and the port is currently outside the CFP but would likely keep Britain’s fish operating at capacity. trading rules roughly as they are now. The difficulty is not even that all fish products will Sam Lowe opened with the observation that in the on all agricultural and fish produce (a rarity in FTAs, need be checked; New Zealand and Canada, UK we export the majority of the fish we catch and where many of these products are still protected). for example, have agreements with the EU that lead import the majority of the fish we eat. It is vital, Nevertheless, the elimination of tariffs does not mean to fewer inspections. Rather, it is the case that fish therefore, that the UK fishing industry retains as tariff that tariffs cease to be a problem altogether. If the UK products will have to pass through border inspection and regulation-free access as possible to the EU government succeeds in its endeavour to leave the posts along with other imported goods. Given that market, both for British catches and British-processed customs union (thus freeing up the possibility of many of these other products will also face entirely fish. This will especially be the case if companies tariff-based trade deals with third countries), the new checks on arrival at the EU border, perishable cannot persuade more British people to buy domestic fishing industry will face a new problem of rules of goods such as fresh fish will likely get stuck in fish. The UK fishing industry consequently has origin. Any trade deal has to include rules-of-origin inspection tailbacks even if they themselves are more priorities than simply quota allocations. requirements to ensure that the goods being traded not checked. This will pose a considerable challenge Because exports are so vital, the final Brexit outcome really do come from the agreement’s member states. to UK seafood exporters who need to deliver their is key. Given the economic and political damage of If the UK and EU had no such requirements, a third products as speedily and freshly as possible.1 a no-deal scenario, we must assume that at the bare country which had an agreement with the EU but not No significant physical, human or IT infrastructure minimum, the UK and EU agree a Canada-style FTA. the UK could divert its UK-bound goods via the EU, preparations have yet begun on the UK side, despite In this scenario, direct tariffs are not a problem. thus avoiding UK tax. In terms of fisheries, fish caught it being the UK’s policy since January 2017 to leave CETA (the Canada-EU deal) has eliminated tariffs and landed in the UK would be relatively easy to prove the single market and customs union. Nor has on the vast majority of fish trade between the UK as originating here; a company would only require a new infrastructure yet been built on the continent and EU, while other tariffs will be gradually phased form costing around £30. But processed products to receive UK fish exports through additional or 1 See, for example: Lisa O’Carroll, ‘Calais after Brexit ‘could be 10 times worse out. The EU has in addition already proposed that would face a more complicated process: Given that than Irish border’, Guardian, 9 March 2018: https://www.theguardian.com/ expanded border inspection posts. world/2018/mar/08/customs-checks-will-cause-huge-tailbacks-warns- a UK-EU agreement could provide for zero tariffs processing companies frequently import their fish, calais-port-boss

12 FISHING IN TRANSITION 13 DEVOLITION AND FISHERIES AFTER BREXIT

Maddy Thimont Jack of the Institute for Government explored the 82 will require looser political commitments lower its environmental standards without Scotland’s (such as memoranda of understanding), while the consent. 3 The governments do, on the other hand, current devolution settlement, and specifically how fisheries might be remaining 49 can return directly to the devolved agree about the basis of a UK single market with affected by current and future disputes between the UK government capitals. However this is all still up for discussion certain harmonised regulations. The delay of the with the devolved administrations. The government UK government’s fisheries white paper has perhaps and devolved administrations. has deemed ‘fisheries management and support’ not helped to build confidence or allay uncertainty. to be one of the 24 areas requiring a centralised Northern Irish fishers, in addition, continue to suffer approach. This may provoke additional conflict from the lack of a government in Belfast and therefore with the Scottish government, which is keen to a lack of meaningful advocacy. protect, promote and where it sees fit, diverge Although the Welsh Government has reached on fishing. 60% of UK fishing waters belong to agreement with the UK Government over the EU Scotland, and fishing plays a proportionally Withdrawal Bill, the Scottish Parliament has refused larger role in the Scottish economy, and ‘way of life’, consent. As we await the Supreme Court’s judgement than the UK as a whole – which explains the concerted on Scotland’s ‘continuity bill’, the row between the criticism of Scottish Conservative MPs over the UK’s two governments is intensifying. This dispute does not fisheries concession for the Brexit transition. bode well for future inter-governmental relationships. It is already the case that the four nations occasionally diverge on fishing, specifically with regards to vessel licensing and quota allocations. The 2012 Concordat on fishing between the UK nations has resolved some of the difficulties, but tensions over quota allocations point to potential future difficulties. This centres on the policies for distributing quotas. In January 2014, the Scottish government notified the other The devolved administrations were established in administrations. This could bring certain advantages, governments that it would no longer permit the the UK around 20 years ago. While the levels of such as genuinely localised and tailored distribution of its share of the UK quota to other devolution differ between Scotland, Wales and policy-making. Nevertheless, it could also bring administrations. The other three nations moved to Northern Ireland all three nations, control their own the four nations into direct competition with one retaliate in 2016 by suspending sales of their quotas fisheries policies, while the UK Government controls another, and also risk the possibility of under-cutting to Scottish vessels – although this revision to that of England. Of course, for as long as devolution on regulations and a general race to the bottom. the Concordat has not been formally adopted. has existed, we have also been a member of the EU, It could also effectively impose internal barriers and This issue is still unresolved and raises the issue which has meant a limited capacity for divergence compromise the ability of businesses to trade easily that there may be limited legal remedy between the constituent parts of the UK. One of the inside the UK, particularly if they must follow different (or enforcement mechanisms) in future disputes, purposes of the single market, for instance, is ensuring regulatory frameworks. and those disputes, could also create far more harmonisation and the ease of doing business divergence – and tension – between the UK’s When these powers return to the UK, it appears that throughout the EU. Now, supposing the UK leaves constituent nations. only a limited number of the 153 policy areas will the CFP (and indeed the single market), there must require legislative action in Westminster: The UK For the time being, the Scottish and UK governments be a UK framework to replace the EU one. Government’s analysis-suggests that legislation are still disputing the mechanisms for repatriating According to the government, the EU currently will be necessary for 24 of them. competences. Edinburgh has argued that all devolved has competence over 153 policy areas which policy areas should come under its supervision 2 UK Government, ‘UK government publishes analysis on returning EU powers’, 9 March 2018: https://www.gov.uk/government/news/uk- are devolved.2 After Brexit, these powers could immediately. Nicola Sturgeon has suggested that government-publishes-analysis-on-returning-eu-powers all be transferred immediately to the devolved otherwise, the UK government could, for example,

14 FISHING IN TRANSITION 15 THE PRACTICALITIES OF IMPLEMENTINGDEVOLITION NEW AND UK FISHERIES LAWS AFTERAFTER BREXIT BREXIT

Andrew Oliver from Andrew Jackson solicitors in Hull offered his Oliver sees the problem not in theory but practice; as many fish stocks grow, migrate and breed across the civil service lacks resources, and after 45 years multiple EEZs). If the UK were to pursue zonal assessment on Brexit’s domestic legal implications for fishing. of EU membership, has no experience of making attachment that could also affect fisheries laws currently under EU competence. He estimates management within the UK, with new potential The EEZ begins 12 miles from the shore; between that that it could take around 20 years to unpick all EU conflicts between the four nations adding to those 12-mile point and the coast the UK has total control legislation. It thus seems likely that EU fisheries conflicts related to our EU membership. laws will only be amended very slowly, if at all. over its waters. A further post-Brexit debate may occur on the In the meantime, the CFP will continue for the Articles 61-63 of UNCLOS are especially relevant. issue of ‘flagships’. The 1988 Merchant Shipping duration of the post-Brexit transition period. Article 62 focuses on the utilisation of living Act was initially intended to tighten restrictions The UK will duly be consulted on the 2020 quotas resources, and specifically compels states to on the ownership of UK vessels, specifying UK at the December 2019 fisheries meeting, although “give other States access to the surplus of the registered vessels had to be 75% UK owned, but in debate continues regarding how meaningful that allowable catch”. Notably, states can take into the Factortame case the ECJ over-ruled the British consultation will be. account the effect of fishing on their economy government. There has been some speculation and “other national interests”, and to protect their Following the transition, it is possible that the UK that flagships could be abolished after Brexit domestic fishing communities. Arguably UNCLOS will be free to interpret the EU laws now transposed and nationality requirements finally introduced, thus limits the UK’s fishing autonomy post-Brexit onto the domestic statute book, without recourse but Andrew Oliver considers this unlikely. while also allowing it to protect its waters and fishing to the ECJ. Certainly courts will be free to consult Quota-holding is a property right under the heritage. Oliver concludes that UNCLOS is not the ECJ judgements, but there could be a divergence European Convention on Human Rights and its ‘big stick’ that some UK fishers imagine. on interpretation. Fisheries arrangements will have court, a Strasbourg body entirely unrelated to the EU, to form part of the final Brexit deal, so it can be and to which the UK will remain a party after In the UK sphere, fishing is principally governed by made clear how EU vessels will negotiate access Brexit. Any attempt to withdraw quota rights will the Fisheries Act 1981. Section 30 links it directly to to UK waters and vice versa. All negotiations must necessitate compensation. The UK government The most pressing concern in the Brexit debate the EU and provides for the domestic enforcement in any event take place under the aegis of UNCLOS. may be unwilling to pursue such a policy – although on fisheries is to divorce pragmatic realities from of ‘enforceable Community restrictions’ – which Although the total allowable catches (TACs) it could demand more UK economic links from the what Andrew Oliver terms the ‘emotional issue of itself refers to the 1972 European Communities Act and quotas for shared stocks will be negotiated flagships’ owners. sovereignty that fisheries creates’. Fishing is seen (ECA) that provided for our EEC (subsequently EU) annually – as they are currently with non-CFP by many as a ‘romantic’ pursuit that benefits membership. Breaches of EU fisheries law (such as One final item to consider is a return to fishing members Iceland and Norway – it could take the nation’s idea of itself and its traditions, rather landing undersized fish) are therefore prosecuted as regulations as they existed before the UK joined the many years to reduce EU access to UK waters. than a going economic concern that affects matters of UK law in domestic courts. With the repeal EU. As the UK did not claim sovereignty over its 200 Indeed, it may not be possible to reduce EU thousands of livelihoods. Certainly, the issue was of the ECA, then – which is the intended result of the nautical mile EEZ until many years after it had joined access at all. hijacked, in Oliver’s view, by many on the Brexit government’s Withdrawal Bill – no EU fisheries the EC in 1973 it is something of a misnomer to argue side who understood its emotional appeal. law will technically be applicable or enforceable Expect a lively debate on whether the UK and EU that the UK should ‘take back control’ of its 200 NM Some commentators have observed that fishermen any longer. should conduct negotiations on the basis of ‘relative EEZ upon leaving the EU. were sold down the river on entering the EU stability’, or move to an alternative assessment In reality, of course, the truth is somewhat different. The government has already informed partners and look set to be sold down it again on leaving. method. (Relative stability is based largely on The Withdrawal Bill effectively replaces the ECA of its intended withdrawal from the 1964 London historic catches, and is widely unpopular with UK Much of the UK’s fishing law depends on so all EU laws will be transferred onto the UK Convention. In reality, the Convention has already fishermen who, with good evidence, feel that the international law, in particular the 1982 United statute book, to be repealed or amended as been subsumed into the CFP and is of little use. UK Government struck a poor deal for its fishing Nations Convention on the Law of the Sea Parliament (or in some cases ministers) sees fit, Negotiations on access for EU vessels in UK waters (UNCLOS). This permits states to declare a industry when acceding to the EC in 1973). over the period of a few years. Some popular EU (and vice versa) are likelier to take place as a part of 200-nautical mile Exclusive Economic Zone (EEZ) laws – perhaps the ban on fishing discards – could well A proposed alternative to relative stability is the broader EU/UK relationship, not unilaterally from around their territories – although notably the UK’s be retained. The Withdrawal Bill will also enable the ‘zonal attachment’, assessed on the location of stocks. the UK. EEZ was only formalised in the 2009 Marine and government to retain and enforce laws following on (This method is not without its own complications, Coastal Access Act. from a UK-EU agreement which requires them.

16 FISHING IN TRANSITION 17 WHAT MIGHT NOT BE FREE ORDEVOLITION FRICTIONLESS IN AND A FREEFISHERIES ? AFTER BREXIT

Andrew Kuyk of the UK Seafood Industry Alliance offered his and consumer information. Non-EU catches also require illegal, unreported and unregulated (IUU) thoughts on the impact of Brexit on fish processors. certificates, which could place an additional burden on exporters. negotiator Michel Barnier has already made it clear that if EU vessels lose access to UK fish, UK fish will lose access to EU markets. Indeed, it seems likely that the EU will refuse to sign any Brexit deal which reduces their access to UK waters. Despite the best efforts of the industry, ultimately fishing may still prove to be a bargaining chip. New trade opportunities outside the EU are limited. Even if the UK were to increase catches and sustainability, it would be unlikely to be able to create a domestic market much beyond that which already exists. The UK could try to increase the amount of fish it processes, but that would require significant investment, and would also depend on current trade remaining free and frictionless. Outside the customs union, however, the UK could liberalise access for Andrew Kuyk’s central focus was on seafood as a This is partly because of a ‘species mismatch’, fish from third countries, and potentially alter the consumer product, as sold in a shop or served in a whereby plentiful UK fish such as herring can only non-tariff conditions of that trade. restaurant. find significant markets (and superior prices) abroad. 80% of UK-caught fish is exported, mostly to the Ultimately the question of seafood trade will be The UK is a large deficit market for fish, as is the EU EU. Imports, conversely, originate mostly from answered by politics and goodwill, with a mutual overall. We import, for example, 90% of our cod from outside the EU. This creates asymmetric trade, pragmatism required to enable business to continue outside the EU. It is vital, therefore, that irrespective in which a simple like-for-like import-export deal will to trade on current terms. Unlike fishing, which is of the vessels doing the fishing, existing trade and prove inadequate. Arguably it also hands the EU even necessarily centred on location, processing can supply chains are maintained. This is partly because more leverage, as it has the capacity to damage the occur anywhere – and if the trade conditions are not of pressure on the industry’s market share: consumers UK’s export flows but the UK cannot do the same to favourable, there is no reason why it should take are no longer seeking fish specifically but increasingly EU fish exports. place in the UK rather than another jurisdiction. shop for convenient items or ‘meal solutions’, placing Britain’s processing industry also requires a stream fish in direct competition with chicken, red meat Tariffs are not a big issue for fish trade as they are of labour. Many of the 14,000 people it currently and vegetable proteins. Fish must therefore remain mostly quite low, and the expectation remains employs are non-UK EU citizens. If the government competitive and attractive, for the sake of processors that tariff-free trade would continue under an clamps down on EU migration or EU citizens decide and fishers alike. FTA. Tariff-rate quotas should also be surmountable to leave, the industry could find itself exposed to under the terms of a trade deal. Far more serious are The key problem for the UK fishing and processing labour shortages. the non-tariff barriers that come from leaving the industry is what Andrew Kuyk terms the ‘supply single market; in addition to the issues outlined by paradox’: we export most of what we catch Sam Lowe, exporters may have to issue notifications and import most of what we eat. of shipments in advance, and ensure that they

conform to EU rules on, for example, food labelling

18 FISHING IN TRANSITION 19 APPLYING INTERNATIONAL, EUDEVOLITION AND UK FISHERIES AND LAW TOFISHERIES BREXIT AFTER BREXIT

Prof Richard Barnes of the University of Hull considered Brexit’s The key Brexit challenge is in inter-state allocation. The UK and EU fundamentally require a shared While there is no international obligation to set framework to resolve questions of access to replace international legal dimensions in the context of fisheries. quotas at all (UNCLOS establishes it as a discretionary the role currently provided by the European Court tool), quotas are generally preferred. This also of Justice. For example, under Article 62 of UNCLOS, requires mechanisms within a state to distribute them. in the event of a surplus of stock, a state is compelled Given that changes to allocation frequently result to “give other States access to the surplus of the in conflict (and legal action), and that states are also allowable catch”. In such an event the UK might obliged under international law to cooperate on seek to develop its fleet capacity in order to catch quotas and access to resources, the potential for more of the Total Allowable Catch (TAC), though post-Brexit disharmony between the UK and EU this is understandably difficult within a short time is significant. The key focus of divergence may frame. Alternatively, the UK could set the TAC at the come from the rival frameworks of zonal maximum level it is able to exploit, which would be attachment and relative stability. met with resistance from Brussels and complaints of bad faith. The most likely outcome is that the UK, Relative stability governs the EU’s overall fishing under Article 62, would sell access to the surplus framework. Importantly, it is an inter-state stocks on commercial terms. mechanism, so individual fishers do not derive rights from it. As part of the EU acquis, relative stability Barnes identifies further friction points as emerging will necessarily form part of the Brexit transition. from territorial zones, in particular the 6-12 mile Whether it continues into the post-transition limit covered formerly by the London Convention, EU/UK relationship remains to be negotiated. and the bilateral neighbourhood or ‘voisinage’ agreements that govern fishing between 0-6 miles Zonal attachment is based on the quantity of stocks Brexit offers both opportunities and challenges for cooperation and negotiation, which is politicised and – particularly important in the case of Ireland and in a state’s waters, and the length of time spent there, fishing. The first key opportunity lies in the possibility frequently relies on bargaining. Moving to allocations Northern Ireland. Although both sets of agreements and consequently depends more on scientific data. of a future tailored fisheries management regime based upon zonal attachment is possible, but this pre-date the CFP, the CFP has accommodated It also depends on the human geography of states, after leaving the CFP, which has, with good reason, is not supported by the CFP and would have to be them, and UNCLOS has also superseded some which ignores the ways in which fish stocks migrate, often been described as unwieldy, overly centralised, determined and negotiated with other States/EU. of their provisions. The London Convention, and fluctuate in number. It is highly susceptible to complex and slow to adapt. The UK could, in theory, therefore, is unlikely to be of use to the government The third opportunity is innovative management changes in the distribution of stocks as a result of develop a leaner and nimbler system - but details as a fall-back option even if it ultimately decides not options, including rights-based systems and climate change and pressure on stocks from fishing. are currently thin, and there are no guarantees it to withdraw from it. Perhaps more important will be effort-based systems or days at sea. Norway and the EU had a dispute in the 1980s after would in fact prove superior to the CFP. Many of the the need to continue the voisinage agreements or Barnes concludes, that the latter are unlikely for herring stock migrated in significant numbers to challenges of adapting to complex natural systems replacement bilateral fisheries access arrangements. shared stocks, given the EU and Norway’s favouring Norway, but the EU offered Norway quota based and ensuring compliance will remain. As a third country the UK will instead have to of a quota-based system. Moreover, these alternative on the herring’s previous location: the figure was negotiate neighbourhood agreements with the EU as The second key opportunity arises from systems have appeared less successful than hoped consequently too low. improvements to allocations of quotas–echoing when attempted elsewhere. a whole. In any event, the UK is likely to take more Other criteria can also be used in determining quotas, Theresa May’s demand for a “fairer allocation of than 10 years, in Barnes’s opinion, to fully unpick Barnes considers a lack of a common approach such as the ‘conservation credits’ currently used fishing opportunities” in her March 2018 Mansion itself from the CFP and become an ‘independent’ across the UK fishing sector to be a key challenge. in Scotland. International law offers no clear House speech. 4 Allocation of UK quota has always coastal state. He identifies the need for ‘clear allocation principles’ guidance, so the UK and EU will have to negotiate been in the UK’s own national gift. This, ultimately, as a necessary first stage to precede what will be this politically, without legal recourse. 4 remains a political question. It is possible that where UK Government, ‘PM speech on our future economic partnership with complex intra-UK discussions. the European Union’, 2 March 2018: https://www.gov.uk/government/ stocks are mostly in UK waters, allocations can speeches/pm-speech-on-our-future-economic-partnership-with-the- european-union be improved for UK fleets. Shared stocks on the There are three limbs to quota allocation: other hand will depend on an ongoing system of between states, between sectors, and within sectors.

20 FISHING IN TRANSITION 21 CONCLUSION

As John Goodlad noted, in concluding on behalf The Fishing in Transition of Fishmongers’ Hall, UK fishermen are looking for seminar organising committee quota while UK processors are looking for market access. They both, however, belong to the fishing Tom Appleby industry and the government must try to look after (Blue Marine Foundation) the needs of both. Charles Clover It is possible to achieve this, for example by entering (Blue Marine Foundation) into a Norway-plus style agreement that allows Barrie Deas fishermen to leave the CFP, but still preserves (National Federation of Fishermen’s Organisations) barrier-free access to EU markets. Adrian Gahan It seems the UK fishing industry must also prepare (Blue Marine Foundation) for the likelihood that EU fishermens’ access to UK waters is unlikely to decline in the short or even long John Goodlad term, even if the rules that govern their access and (Fishmongers’ Company) management do change. Mike Park (Scottish White Fish Producers Association)

This report is a summary of the speeches presented Jim Pettipher at a seminar at Fishmongers’ Hall, London, April 23 (Coastal Producers’ Organisation) 2018. It was written by the Blue Marine Foundation, Erin Priddle with Jonathan Lis. (Environmental Defense Fund) The opinions expressed in this report are Andrew Wallace those of the speakers, not of the Blue Marine (Fishmongers’ Company) Foundation, Fishmongers’ Hall nor any of our partner organisations. You can see recordings of all the presentations at bluemarinefoundation.com/films

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