Yesterday “Sherpa” Frost finally lifted the veil of secrecy that had prevented all those apart from a magic circle of the High and Mighty to see the draft legal texts for the implementation of Brexit. Those deliberately kept in ignorance had included not only the Scottish Government and our friends in Northern Ireland and Wales, but the actual EU member states themselves, whose diplomats the Johnson regime was not prepared to trust to keep a secret.
I’ve been following developments on fishing and trying to understand the issues, with no great confidence that I’ve got things right. Accordingly any informed and referenced comments are most welcome. For the full text on the “Fisheries Framework Agreement” click this link:
Regarding fisheries the aim has been to have an agreement in place by the end of June, i.e. just under six weeks from now. I’m rather shocked to be able to say that both sides could probably sign up to this paper tomorrow without compromising the interests of either in any material way whatsoever. The reason why is quite simple; what has been advanced isn’t in any meaningful way a draft legal agreement at all. Virtually everything likely to cause dissent has been left out.
In the first year at law school students are taught that an “agreement to agree” will never constitute a binding legal contract. The law reports are full of cases of “contracts” where wishful thinking, woolly phrases and “Heads of Agreement” have enabled people to duck out of points of contention. Scots lawyers and, I think, the Scottish public don’t trust things such as selling our house “subject to contract”. This document is very much like that.
One’s first impression on looking at the fisheries draft is that it’s so short. Out of the eleven pages offered three are blank, the empty schedules. We then turn to the “Disclaimer” page, which at once gives the game away.
“The UK proposes the following legal text to form the basis for discussions with the EU on a Fisheries Framework Agreement.” An agreement to agree? Let’s look further.
Page 2 starts with a header that again gives the game away, this isn’t a draft contract or a treaty, it’s a “DRAFT UK NEGOTIATING DOCUMENT” The rest of this page is pure narrative with no meat in it. There follow twelve “Articles” of which I suggest that no fewer than nine are entirely non-contentious, more or less “boilerplate” text that nobody will seriously take exception to. The remainder are Articles 1, 2 and 12. Within those the bones have a little meat on them but only a tiny amount of gristle.
Article 1 on Page 3, “Definitions”, does what it says, but curiously and no doubt deliberately does not define or even refer to quota, a word I failed to spot at any point in the document.
One definition is very important, in the context of quota and “getting back control”. The definition of a UK or an EU fishing vessel is simple: it’s one flying the flag and licensed by one or the other side. As we all know, you don’t need to show your passport to obtain a flag. Many, perhaps most, fishing vessels, certainly the big ones and the supertrawlers, are owned via companies, the shareholders of which are often other companies, often offshore. Many vessels are acquired with mortgages from UK institutions, including the Royal Bank of Scotland, which we the taxpayers own almost in its entirety.
Those vessels with their complex ownership structures fish on the basis of quota which will have been purchased on the market like any other item of property. This is because there are surely no longer any significant numbers of fishers who got an original grant of quota free and who are still in the trade. A share of quota can cost more than the actual boat and we can assume that owners will not happily see it trashed. Anyone who thinks they won’t still be seeing “foreigners” catching “our fish” after Brexit should stop reading now.
Article 2 provides that “fishing opportunities” will be kept under review and negotiated annually on the basis of the best science. The parties respective permitted “amounts” will be adjusted proportionately. As noted, the word “quota” does not appear and this would have been the place to insert some mechanism for avoiding disputes re quota issues.
Finally, Article 12 is the bombshell. Using a cunning system of double negatives a textual smokescreen has been created to conceal the dates on which anything material might happen. Paragraph one reads:
“Each Party shall notify the other Party in writing through diplomatic channels of the completion of its domestic requirements for entry into force of this Agreement. This Agreement shall enter into force on a date to be mutually agreed and specified in these notifications.”
Paragraphs 2 and 3 list respectively the parts that will come into force on that future date, in fact virtually everything of importance and the parts that take effect on 1 January 2021, basically policing, management and data sharing. Incidentally there seems to be a drafting mistake, because to be effective Paragraph 1, delaying things, should come into effect on the latter as otherwise it all happens now and “we’re all doomed”.
Paragraph 4 allows either party to terminate on two years’ notice, but along with all the material stuff this doesn’t come into effect now.
Paragraph 5 states that the “Agreement” supersedes all previous ones, but of course when read along with Paragraph 1 it simply doesn’t, in practical terms.
Overall the text looks like something worthy of Baldrick, that will enable our illustrious Prime Minister to claim another great victory over Johnnie Foreigner while leaving the mess for someone else to sort out later.
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