Fishing for Leave has scorned Theresa May’s political spin as either being mendacious or naive to the reality of the position the government is digging itself into with pursuit of a Transition deal.
It is a legal matter of fact that we will officially leave the EU and with that the disastrous Common Fisheries Policy (CFP) at the end of the Article 50 period. It’s not a question of do we leave, it is a question of what we do thereafter that is of grave concern and that fishing will be part of negotiations for that transition period.
A “transition” period where we agree to obeying all EU law and will maintain “full regulatory alignment” is truly terrifying – we may have officially “left the CFP” but we’ll be locked into running a mirror image when we could walk away under Article 50 and automatically regain all control under international law– the Prime Minister is politically spinning with a forked tongue!
At last week’s Council of Minister’s the EU reiterated what the EU Commission has clearly stated: that agreeing to a “transition” period will mean obeying all EU law, including new ones after Britain officially leaves the EU under the Article 50 procedure.
Michel Barnier said in his speech (Rome, 21st Sept. 2017):
“On the 29 March 2019, the UK will leave the EU and will become a third country…without a withdrawal agreement, there is no transition – this is a point of law. If we are to extend for a limited period the Acquis of the EU, then logically this would require existing Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures to apply. The UK would have to comply to all EU courts and […] refer questions related to interpretation of rights deriving from European law to the Court of Justice of the European Union (ECJ). The Court of Justice would remain the ultimate guarantor of the agreement.”
If this wasn’t clear enough to HM Government, President of the European Council Mr Tusk reiterated the same words again at the conclusion of Phase 1 talks on 8th December:
“As you know the UK has asked for a transition of about 2 years while remaining part of the single market and customs union […] during this period the UK will respect the whole of EU law including new law. […] It will respect budgetary commitments, it will respect judicial oversight and of course all related obligations. Existing Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures will also apply”.
Fishing for Leave highlight that Article 50 clearly says “the treaties (all EU law) shall cease to apply” at the end of the Article 50 period at 11pm on 29th March 2019. This means Britain is out of the entire EU including the disastrous CFP.
To add further weight to this International Law, Article 70 of the Vienna Convention says:
“the termination of a treaty does not affect any rights, obligations or legal situations created through the treaty […] unless the treaty otherwise provides or the parties otherwise agree”.
Quite clearly the EU has otherwise provided through Article 50, Section 3 of the TEU.
This means that by the EU 27 agreeing to end the treaties there is no recourse under international law for them to have any sway over Britain in terms of laws, courts, money or fishing policy.
However, as a “transition” period is part of the deal once we have left the EU under the provisions of Article 50, it is only in the EU’s gift to grant. Therefore, as the EU has clearly stated, it is on their terms and to get a “transition” the UK will have to capitulate to obeying all EU law to cancel out the provision of Article 50.
The only way to do this is as part of a new deal after we legally leave on 29th of March – such an agreement would have to be ratified by a new Withdrawal Treaty.
This means we will have re-joined the EU in all but name having to obey its laws and directives with no control or say in some sort of legal purgatory.
In effect, the UK breaks the treaties and leaves under Article 50 of TEU and Article 70 Vienna Convention. Thereafter, the UK agrees under our own steam (in a new treaty) to continue to recognise EU laws and authority under this new agreement.
Conveniently all EU law will be hibernating on the UK statute book, having been adopted with the EU Withdrawal Bill.
We officially “legally” Leave the CFP, but under the government’s current strategy we will have capitulated to being trapped in a transition in some sort of legal purgatory where we will be running a mirror of the CFP as some sort of vassal state.
Fishing for Leave say they have doubts that under a transition the UK will ever escape.
As re-obeying all EU law in a “transition” will be enshrined under a new treaty then, “unless the treaty otherwise provides”, Article 70 of the Vienna Convention says:
“the termination of a treaty does not affect any rights, obligations or legal situations created through the treaty”.
This will allow the EU to claim continuity of rights along with Article 30 of the Vienna Convention. It’s a grey area and therefore could nail the UK government’s feet to the floor in a protracted legal fight.
By the time the UK escapes being trapped in a transition there will be very little industry left. This is what is terrifying for two reasons:
1) By having to obey all EU law including new law whilst not being a member state means the EU can move the goalposts to finish off what is left of the British Fishing Industry.
2) The EU quota system causes discards as fishermen have to catch and discard fish to find what they can keep to match their quota. In all its wisdom the EU enacted a ban on the symptom (discards) rather than address the cause (quotas). This means as of 2019 when vessels exhaust their lowest quota to avoid discarding it must stop fishing. These “choke species” will decimate 60% of the UK fleet according to Seafish statistics.
It is an impossible contradiction for the UK to be free of the EU and the CFP and have a transition.
Adopting all EU law and then agreeing to a transition whilst we obey that law flies in the face of ‘taking back control’ and exposes this country to huge legal risk.
The government’s Remain-biased doddling and ineptitude is leading not only fishing but the country into a seriously dangerous position and putting us at the EUs mercy. It would seem that the government is still trying to play at ‘being in Europe but not run by Europe’.
Trying to carve out a “deep and special partnership”: that is just not on offer, to reframe some sort of half in half out relationship – Mr Hague couldn’t get it, Mr Cameron couldn’t get it and the EU is clearly saying Mrs May isn’t getting it either.
We therefore call on the government to walk away from the punitive terms the EU is demanding to allow the government to fulfil what it says it will do – properly and fully regain our sovereignty and independence provided by Article 50, not trap us in transition as a vassal state to finish off our industry when Brexit should be our salvation.