While we all focus on Brexit, the EU sausage machine continues to churn out law
On the 3rd of August 2016 the European Commission published its plan for fisheries in the North Sea. There is only one flaw. The EU share of North Sea waters are about to shrink by more than half.
There is an old saying: ‘Laws are like sausages. It’s better not to see them being made.’ In the European Parliament, I make law, and I can confirm the truth of the statement. It isn’t pretty; the compromises, the calculations, the clauses whose unintended consequences are discovered only later, the give to get the take.
I bring this up because, whilst the world trains its eyes on London and the flying circus that is Brexit, the EU sausage machine continues to churn out law.
On the 3rd of August 2016 the European Commission published its plan for fisheries in the North Sea. On the face of it, there is much to commend the plan: a multi-annual approach to fisheries to increase stability, further regionalisation of management, refinement of the discard ban.
There is only one flaw. Take a look at the map. The North Sea waters of the EU are confined to the small quarter hugging the continental coastline. The remainder of the North Sea is shared by the UK and by Norway. Legislating for the EU’s North Sea waters is just fat. They are about to shrink by more than half.
It is the intention of the European Commission to establish Management Plans for each of the sea basins under its control. It began with the Baltic Sea whose plan was concluded in July. Next up is the North Sea. Then comes the Northwestern Waters (where again UK interests dominate). The Mediterranean will be the last great basin to secure a plan. Ironic since it is the sea at greatest risk and in most need of management reform. According the European Commission, 95% of fish stocks in the Mediterranean are overexploited.
Back in September I wrote to EU Fishing Commissioner Karmenu Vella calling on him to postpone the North Sea plan, given the uncertainties created by Brexit. As I explained, beginning work on such a complex plan now would only increase the uncertainty faced by EU fishermen. Further, a plan which failed to do justice to specific UK concerns ran the risk of being repealed post-Brexit, compounding the uncertainty. Alas, the Commissioner was not for budging, and so work has begun in the Parliament and in the Council on the North Sea Management Plan.
If the Baltic Plan is anything to go by, we can expect the North Sea Plan to be on the statute books by the end of 2017, perhaps a little later given the complexity of the demersal stocks. When the UK Brexits, the law will still be on the books. Except, it won’t actually work, and will need to be revisited immediately by the UK Government.
Let me explain.
Throughout the North Sea Plan there is reference to ‘delegated acts’. Such acts are the means by which the European Commission can update the legislation in real time without recourse to the cumbersome process by which the original law was made. The Baltic Sea Plan had 13 such delegated acts covering the species concerned, modifications to fishing gear, minimum conservation reference sizes, discard ban exemptions, prohibited areas and technical measures.
Clearly upon Brexit, the UK cannot be party to acts which delegate authority back to the European Commission. That would just be daft.
Over the summer the UK civil service was tasked with identifying all the laws currently on the statute books which contain delegated acts and would require early revision. A sensible move. However to be party to the drafting of new laws which include such delegated acts seems remarkably short sighted indeed.
Share of the catch
The heart of the North Sea Management Plan is the setting of catch entitlements (quotas) on a multi-annual basis rather than for a single year. Again a laudable ambition which should smooth the risk of year-on-year saw-tooth quota variation. However, the national quotas for the North Sea are in fact a share of what is known as the Total Allowable Catch (TAC), which is presently determined in a bilateral negotiation with Norway (since the two ‘share’ the North Sea). In the future, TACs will be determined either in a trilateral with Norway and the EU or a series of bilaterals. How the UK chooses to manage its quotas will therefore be a matter for the UK alone, and it will not be bound by the EU’s approach.
Norway, land of the midnight sun
The EU’s North Sea Plan only covers EU waters. Norway, as a sovereign state, is unaffected. Indeed, Norway has already made clear that while they will make efforts to harmonise the management of shared North Sea stocks with the EU, it will be no copy and paste job. Post-Brexit, the UK will be sovereign too. In a curious way, it would be more sensible to harmonise our approach to North Sea fisheries with our Norwegian neighbours rather than the EU. However, if we’re locked into the EU model, that approach will become all the more difficult.
So my advice is simple. Halt the work on the North Sea plan now. It makes little sense. It’s not as if there are no other seas crying out for serious management reform. Mediterranean Sea, anyone?