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Why Brexit talks have become snagged on fishing

Sea birds and fishing vessels are seen in the North Sea off the east coast of Scotland in a photograph taken from the fishing trawler Scotia Star - Credit: AFP via Getty Images

Why is fishing proving to be so intractable in the post-Brexit negotiations? Essentially for one reason: the claims made by Brexiters that Britain will be able to run a completely different national policy, reserve all rights to fish in the UK’s Exclusive Economic Zone (EEZ) to UK fishers, and still export without impediment to the rest of Europe, are pie in the sky. As the House of Lords report on the issue said: “The vote to leave… has raised expectations for the future of fisheries policy that may be hard to deliver.”

Right to fish
While the headlines (and government statements) have been about EU vessels access to UK waters (and vice versa), the real issue is not about where the fish are caught but how much is caught – wherever that happens, and how to share it out. Fish have the unfortunate habit of swimming from one country’s waters to another, and joint management is the only way to prevent overfishing from depleting stocks. Many species spend various stages of their life cycles in different countries’ waters and their spawning grounds are often in a different area from where they are caught when mature.

Practical reality, therefore, means that joint decisions have to be reached on sharing out fishing rights and then enforcing respect for what has been agreed.

This is in any case required under international law. Britain, the EU and its member countries are all parties to the United Nations Convention on the Law of the Sea (UNCLOS), which lays down that countries must jointly manage fish stocks that migrate between two or more countries’ waters. This applies to more than 100 of the stocks present in UK waters. Such stocks have to be managed at levels which do not exceed Maximum Sustainable Yield (MSY) – the same commitment the UK has under EU law as specified in the (recently reformed) Common Fisheries Policy (CFP).

Even the avowedly Eurosceptic former fisheries minister George Eustice rapidly backpedaled on claims made by Brexit supporters admitting: “When it is said, ‘We are going to take back control’… it sounds perhaps more dramatic than it might be, in that… we would then still engage in international negotiations around mutual access rights, mutual shares and the like”, and that the UK will be bound by “clear commitments…to agree shared TACs (Total Allowable Catches)”.

The aforementioned Lords report said that across the industry there is “widespread agreement that the UK should continue to fund, and take advice from, the International Council on the Exploration of the Sea (ICES)” – exactly the same scientific advice on the basis of which TACs are agreed at EU level.

Nor is reserving UK waters to British fishers a simple matter. The rights of fishers from several other European countries to access and fish in UK waters – and vice versa (some 20% of fish caught by British boats are from waters of other countries – are in large part derived from international law and historic fishing rights, pre-dating our entry into the EU in 1973. They would only marginally be changed by Brexit.

A complete closure of the UK EEZ to foreign vessels would probably only be possible if the UK chose to terminate such agreements, a course of action that would jeopardise all agreements on fishing and therefore result in fish stocks being overfished. It would also invite retaliatory action as regards reciprocal rights for British fishers, but could also see other countries and the EU – our biggest market for fish exports – slapping a tariff or quota on British fish exports.

Ability to negotiate
So, our ability to negotiate will remain crucial. But, with Brexit, we will no longer be negotiating with other EU countries as an equal partner around the table, but as one against many. EU countries will have thrashed out joint positions before negotiating with Britain. And they would not be inclined to concede a more favourable deal to the UK than we have now when our own minister admits that “in the North Sea, it is generally accepted that we have an allocation which would be considered fair”.

Inside the EU, countries collectively agree TACs, based on scientific advice from ICES. Once agreed by national ministers in the EU Council, the TACs are shared among member states (‘national quotas’) on the basis of the ‘relative stability’ allocation key, which is based on historical catch levels and grants EU countries a fixed percentage for each of the fish stocks in question. For example, in 2015 the UK was allocated quotas amounting to 28,576 tonnes of North Sea haddock (equal to 84% of the EU TAC) and 34,066 tonnes of North Sea plaice (equal to 28% of the TAC).

Each Member State then allocates the quotas that it receives to fishers in its country. The current method of allocating quotas within the UK has been criticised for disadvantaging smaller vessels (and, indeed, gave a huge share of the quota to a single, Dutch owned, vessel), a criticism frequently directed to ‘Brussels’ despite being entirely a UK decision.

Outside the EU, countries like Norway and Iceland negotiate with it, facing a joint position agreed upon by EU member states. Britain will now be in a similar position. It cannot avoid negotiating agreements with the EU on how shared stocks can be managed, on access arrangements for fishing vessels, and trade in fish products.

Britain will also no longer be party to the agreements the EU has negotiated with third countries, not least the important Northern Agreements with countries such as Norway, Iceland and the Faroe Islands. Britain will cease to be included in the quotas and mutual access agreements the EU negotiates with them and other countries, and will lose its share of such agreements. It will have to negotiate its own, separate agreements with such countries.

Such negotiations have historically proved to be more difficult than the internal EU ones. Disagreement arose, for example, over the TAC, and the quota that each country would receive, for mackerel in the North East Atlantic. Each party then acted unilaterally for several years, with the result that stocks were grossly overfished. As even George Eustice conceded: “One of the shortcomings of these looser types of agreements is that, unlike the EU where ultimately it comes down to a vote on QMV [Qualified Majority Voting] if all else fails, it is harder to sometimes reach agreement at all.”

Rules about fishing – net sizes, gear, standards
So, does ‘independence’ from the EU mean we can now set different rules for our fishers? Again, not so easy in practice… The government has brought all existing EU rules, including CFP rules, into national law, saying it can then review, maintain, amend or repeal over time.

Some fishers hope that Britain might relax the EU ban on throwing away fish at sea. However, this discard ban was supported (indeed, pushed for) by Britain when it was agreed. It was even a Conservative Party manifesto commitment (not that that is any kind of guarantee).

Quota hopping (the practice of fishers from other EU countries benefiting from UK quotas by setting up UK companies to buy UK fishing vessels and thereby quotas) is possible because of freedom of establishment, not because of the Common Fisheries Policy. That is likely to be maintained if there is an overall post-Brexit economic deal. 

As fishing will often still be cross-border, there will also be a need to coordinate rules on technical measures (allowable fishing gear, mesh sizes etc.). Through the CFP, a number of standards have been adopted to tackle illegal, unreported and unregulated (IUU) fishing. Compliance with these standards could be a requirement for continued trade with the EU.

There are also several long term stock recovery programmes that have been agreed at EU level that affect shared stocks found in UK and other waters, which the EU will press for Britain to remain signed up to, and it is indeed in Britain’s interests that they work. These include the multi-annual plan for sole and plaice in the North Sea; the recovery plan for Northern hake in the Kattegat, Skagerrak, North Sea, the Channel, West of Scotland, all around Ireland and Bay of Biscay; the multi-annual plan for sole in the Western Channel; the long-term plan for West of Scotland herring; measures for the recovery of eel; and the new long-term plan for cod stocks.

It has taken years to reverse the decline in fishing stocks, which began well before the CFP but for many years it failed to adequately address. Following the 2013 reforms, many at British instigation, the CFP is at last on a better track and there are few things that Britain would do differently, even if it could.

Britain exports around 80% of its catch to other (mostly EU) countries, and imports the vast majority of the fish that are processed or consumed in Britain, which either come from the EU or countries with whom the EU has agreed preferential trade relations. It is vital for our industry (nor least the processing sector in Grimsby) and for our consumers that this can continue without impediment.

However, if we leave the EU without a preferential trade agreement, WTO rules would apply, and we would face tariffs on fish products from 2% on Atlantic Salmon to 20% on frozen mackerel, and up to 25% on highly processed products. Equally, the EU would face tariffs on exporting to the UK at a level agreed between the UK and the WTO.

If our aim is to secure a free trade agreement, it is important to remember that trade in fish and seafood products is not normally part of a standard free trade deal. Indeed, Norway and Iceland, despite being members of the European Economic Area (EEA), and thus for most purposes the single market too, are nevertheless subject to tariffs and quotas on many fisheries products

Of course, even if we do agree a trade deal with zero tariffs, as the government has insisted that we also leave the European customs union, so there will be rules of origin customs checks, mandated by the WTO, at borders, which triggers a lot of paperwork, and can cause hold-ups that are particularly damaging for products where freshness is essential. Indeed, every shipment of fish/shellfish would require a health certificate from Defra issued in advance (5-14 days) with exact weights per box (no use for shellfish), a certificate of origin (normally Chamber of Commerce, a bit of a problem in the Highlands and Islands), as well as having a veterinary officer on site for every dispatch to sign certificates (whether that be 1kg or a 26 ton container) to seal the shipment with ‘secure tags’.

This is an impossible expense for lobster/langoustine fishermen with 20kg for Madrid, as well as a 20% tariff and £350–£600 for a vet waiting for a lorry to turn up. It’s a price sensitive market – adding in effect 30% plus paperwork for buyers at customs points in Spain/France will decimate the rural Highland and Island economy where currently 85% of shellfish goes to EU markets.

Nor are trade deals just about tariffs and quotas; they are also about standards and quality. The EU regulates marketing standards for fish products to give consumers assurances about the quality and integrity of fish, and it will be necessary to meet those standards in order to sell into the EU market. Compliance with import standards is also essential for UK vessels that land their catches directly into EU ports, though the continuation of this practice will anyway be subject to negotiation with the EU. Up to now, we met those standards, because they were set jointly by us and other EU members. But now, we shall either have to follow those rules anyway, no longer having a say on them, or forgo selling into the EU, our main export market.

Financial support for fishing, communities and infrastructure
The EU’s Maritime and Fisheries Fund provides support to fishing communities and fishers, including for fishing ports, safety on vessels, landing sites, auction halls, shelters and equipment. Fishing has also benefited from EU research funding and fishing communities from European Investment Bank loans. Whether the government will replace all this following Brexit is far from certain, bearing in mind the significant hit to public finances in general that the wider economic effects of Brexit will cause.

Internal UK stresses
Fisheries management is a devolved matter for which the CFP has provided a common framework across the four UK nations. Post-Brexit this framework will fall away, raising the potential of four differing UK fisheries management regimes. It will not necessarily be easy for the UK government and the devolved administrations to agree on a domestic fisheries policy after Brexit. The government excluded the devolved administrations from the Brexit talks.

A significant proportion – as high as 50% in some places – of people working in the fish processing sector have come from other EU member states. The government’s termination of free movement is likely to cause difficulties.

The future
Those who expected great changes to come about as a result of leaving the CFP, and those who hoped that new opportunities would arise, are likely to be disappointed. The promises made by the Leave campaign were far-fetched. There is even a serious risk that, in a number of crucial aspects, the British fishing industry will be worse off outside of the European Union.

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