Introduction

One thing is for sure: the claims made by the Leave campaign that Brexit means we will be able to run a completely different national policy, reserve all rights to fish in the UK’s Exclusive Economic Zone to UK fishers, and still export duty-free to the rest of Europe, are pie in the sky. As the recent 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.”[1]

Right to fish

Fish have the unfortunate habit of swimming from one country’s waters to another, and joint management is the only way to prevent over-fishing 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 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”. [2]

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)”[3], — exactly the same scientific advice on the basis of which TACs (Total Allowable Catches) 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[4]) — 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. Indeed, some legal experts hold that most of the historic rights were codified within the 1964 London Fisheries Convention, which means there are some 32 areas of the British coast where other states can fish[5].

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. Other 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 Total Allowable Catches (TACs). Every year the European Commission proposes a TAC for commercial species for each area within the EU zone, based on scientific advice from ICES. Once agreed by national ministers in the EU Council, the TACs are divided among Member States in the form of 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)[6].

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. From the day of Brexit, Britain will be in a similar position and will need to have in place arrangements with the EU, so that shared stocks can be managed, access arrangements for fishing vessels can be negotiated, and trade in fish products can continue.

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 European Commission negotiates on behalf Member States with third countries. What happens to the UK “share” of such agreements will be an issue. In any case, new bilateral or trilateral agreements will be necessary, and will be needed quickly, unless a long transitional period maintaining the current status quo is agreed.

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 Eustace 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”.

UK membership of relevant regional fisheries bodies (RFMOs), particularly North East Atlantic Fisheries Commission (NEAFC), will also have to be secured.

Rules about fishing

The government has said that in its “Great Repeal Bill” it will aim to bring all existing EU rules into national law, which it can then review, maintain, amend or repeal over time. This includes CFP rules.

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.

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 the British government when it was agreed. It was even a Conservative Party manifesto commitment, so it is unlikely that the government will seek to repeal it[7].

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. Whether this is maintained post-Brexit is likely to be determined in the course of the wider negotiations on withdrawal, where the interests of other economic sectors will not necessarily be the same.

As we saw above, Britain is almost certainly going to continue to negotiate TACs and quotas with the EU, and its own management system will be based on the same scientific data (from ICES) and the same objectives (notably at reaching, then keeping, stocks above the level that produces Maximum Sustainable Yield (MSY)), an objective that cannot be reached alone.

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. These include the Multi-annual plan for sole and plaice in the North Sea[8], the Recovery plan for Northern hake: Kattegat, Skagerrak, North Sea, the Channel, West of Scotland, all around Ireland and Bay of Biscay[9], the Multi-annual plan for sole, Western Channel[10], the Long-term plan for West of Scotland herring[11], Measures for the recovery of eel[12], and the new long-term plan for cod stocks[13].

And, until it actually leaves, the UK will continue to have a say on current EU legislative proposals that could have an effect on Britain after its withdrawal. Ones of particular significance to the UK include a proposal on the Conservation of fishery resources and protection of marine ecosystems through technical measures (notably fishing gear)[14]; a Multi-annual plan for demersal stocks in the North Sea[15]; and a Multiannual plan for the management of demersal fisheries in North-western EU waters (proposal expected in March 2017)[16].

Trade

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[17]. 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, if we leave the Customs Union, there will be rules of origin customs checks at borders, which triggers a lot of paper work and can cause holdups that are particularly damaging for products where freshness is essential.

The UK will also cease to be party to the agreements reached between the EU and third countries. Replacement agreements for the UK alone would have to be negotiated – and negotiated quickly. As the Lords report concluded: “the UK may be able to negotiate new preferential trading relations with non-EU countries, though such negotiations are likely to be complicated and time-consuming. It is uncertain whether new markets would be able to replace or compensate for current exports to the EU.”

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. At present, we meet those standards, because they are set jointly by us and other EU members. But once we leave, 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[18].

Fishing has also benefitted from EU research funding and fishing communities from EIB 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.

During the Brexit negotiations, and in those with third countries, given the particularities and size of Scottish fisheries, the Scottish Government wants to be fully and directly involved in defining the UK position and even have the lead negotiating role for issues in which Scotland has the majority interest.

Staff

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. Any future restrictions on free movement could cause difficulties.

Conclusions

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.

UPDATE from A. MacLeod – 13/01/17

One thing people forget is ‘customs union’. If the UK pulls out, every shipment of fish/shellfish would require a health certificate from DEFRA (Carlisle) 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.

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SOURCES

[1] Lords EU Committee Report on Brexit and fisheries. HL paper 78

[2] Statement to a House of Lords’ enquiry on Brexit and fisheries. HL paper 78

[3] Lords EU Committee Report on Brexit and fisheries. HL paper 78

[4] ibid.

[5] e.g. Professor Richard Barnes, University of Hull, testimony to Lords Committee

[6] https://ec.europa.eu/fisheries/sites/fisheries/files/docs/body/poster_tac2015_en.pdf

[7] See Conservative European Election Manifesto 2014

[8] Council Regulation (EC) No 676/2007

[9] Council Regulation (EC) No 811/2004

[10] Council Regulation (EC) No 509/2007

[11] Council Regulation (EC) No1300/2008

[12] Council Regulation (EC) No 1100/2007

[13] Amending Council Regulation (EC) No 1342/2008

[14] COM(2016)0134

[15] COM(2016)0493

[16] http://ec.europa.eu/atwork/synthesis/amp/doc/mare_mp__2016_en.pdf

[17]http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/eu-energy-and-environment-subcommittee/brexit-fisheries/written/38493.html

[18] https://www.gov.uk/guidance/european-maritime-and-fisheries-fund-emff-before-you-apply