Brexit and Fisheries: an Update

Last Sunday I reported that the UK had at last issued draft legal texts, but on the basis that M Barnier’s team were not allowed to share them with the member States. A week on, that remains the case, but “Sherpa” David Frost has said that they will be made public next week. One assumes that the Scottish Government and the NI and Welsh administrations have not seen them yet either.

Tragically it now seems very probable that 2020 will end with the parties failing to reach any meaningful agreement on the major issues and the UK simply completing the Brexit process by crashing out. This is not the place for a detailed analysis, nor do I have the skill to present that. This has been done expertly throughout the process by Professor Chris Grey of London University and his latest instalment can be found here: Lost in Time and Space

From the start the EU has made it clear that the basic principles and freedoms on which the Union is based were not to be compromised to benefit the interests of a departing state. It appears that the UK, personified by May and now Johnson via his “Sherpa”, have refused to accept this and somehow assumed that M Barnier’s position was a negotiating tactic. Last week shows that it wasn’t and at the same time the UK position has, if anything, intensified.

In legal terms the division between the two sides seems to have roots in different views of fundamental matters such as what a “State” is and what meaning is to be given to the concept of sovereignty.

Historically the UK concept of sovereignty was based on ideas that came uniquely from English, rather than Scottish, legal tradition. Early on there was a view that God had empowered the King, who in turn could grant, or remove, at will, the rights and duties of citizens. Scotland, from earliest times a trading nation, always recognised the need for international amity and regarding the rights of citizens don’t forget the Declaration of Arbroath.

The English view prevailed and survived the arrival of more democratic structures; on the contrary sovereignty was assumed to have been effortlessly transferred to the Crown in Parliament. Thanks to the efforts of Victorian academics such as Professor A V Dicey this became entrenched as the concept of an unlimited Westminster, the idea that no Parliament can ever bind a successor. It dogs political life to this day: a recent example is a provision in the Scotland Act purporting to endow the Scottish Parliament with permanence, which legal academics knew was nonsense and now the rest of us know it too, thanks to the UK Supreme Court ruling on it.

The English approach to sovereignty seems still to assume that it somehow exists prior to and accordingly outwith the legal system. In contrast European legal theorists tend not to speak of sovereignty at all; they regard the legal system as no more nor less than a set of man-made rules created to provide for the smooth running of states and their relations with each other.

When the UK entered the EU this issue wasn’t addressed. Uniquely the UK does not have a written constitution to resolve a pecking order between rules of international and domestic law. Most European constitutions expressly acknowledge the supremacy of the former. Instead of embarking on reform, which would have stirred up all sorts of demands for more democracy, successive UK governments chose to ignore the issue, apart from granting devolution was a welcome by-product. Brexit means that it can’t be ducked any longer.

Regarding rights in the seabed and to catch the fish passing above it the situation becomes intriguing from a legal perspective. For example there is the matter of the boundary between UK and EU waters, itself a matter of international law, which English legal theory regards as subordinate to Westminster law. Let’s assume that it suits the UK for this to remain where it is and swiftly move on to what may be the most serious of the substantive issues, quota rights.

I’ve posted before about how the decisions of governments, more or less neo-liberal, to allow the sale of quota thereby created new rights of property, which are in turn entitled to protection under the European Convention on Human Rights. As we have to remind people, particularly Brexiters, constantly, the ECHR is antecedent to and quite separate from the EU. While the Johnson regime has been extremely critical of it the present position is not clear. The “Future Relationship” document does not expressly refer to the ECHR, but implies that Johnson intends to seek parliamentary approval for withdrawal. I went through it with some care and could only find this:

Notably this appears in the section dealing with criminal law, “humans” as individuals. Has the UK focused on their rights as property owners? Are they here confusing the European Court of Justice (CJEU) with the European Court of Human Rights (ECHR)?

And we find, in M Barnier’s statement yesterday:

“The UK refuses to commit, in an agreement with us, to guarantees protecting fundamental rights and individual freedoms resulting from the European Convention on Human Rights, as agreed in the Political Declaration.”

Regarding fishing, he went on to say:

“Why would we seek to give favourable market access conditions to certain British professionals when our European fishermen would be excluded from British waters and risk losing their livelihoods?”

From Sherpa Frost’s statement:

“Although we have had useful discussions on fisheries on the basis of our draft legal text, the EU continues to insist on fisheries arrangements and access to UK fishing waters in a way that is incompatible with our future status as an independent coastal state. We are fully committed to agreeing fishing provisions in line with the Political Declaration, but we cannot agree arrangements that are manifestly unbalanced and against the interests of the UK fishing industry.

It is hard to understand why the EU insists on an ideological approach which makes it more difficult to reach a mutually beneficial agreement.”

As I’ve noted in previous posts, based on information that came out before the Lords Committee earlier this year, 80% of English quota is now foreign owned, as is an unknown but significant percentage of Scottish. Further, we know that many UK registered vessels have part foreign, or anonymous tax haven owners. It’s reasonable to suppose that since other EU countries have been allowing quota sales, some EU quota may have British owners.

It would be surprising to find a Conservative administration, supposedly devoted to support for private property, creating a situation whereby extremely substantial property owners, many no doubt supporters of both Brexit and the party, exercising “sovereignty” to abolish those rights without the compensation they would be due under the Convention. But if they don’t do this won’t “taking back control” look a bit like the status quo and enrage all those other non-quota owners who voted for it?

No doubt all will be revealed when the text is issued next week.