The clash on the River Thames outside Westminster between Nigel Farage’s flotilla of fishing boats and Bob Geldof’s Remain ship was one of the EU referendum’s defining images. But fishing has long been at the centre of UK hostility towards Europe, with many blaming the EU’s common fisheries policy (CFP) for the decline of the British industry.
Calls for the UK to reclaim its seas and fish were emotive and significant elements of the Brexit campaign. But, as Britain now enters the Brexit era, what actually are the legal implications of withdrawal for UK fisheries?
First things first: change may be afoot, but it will not be quick. Until the UK formally invokes Article 50, fisheries regulation will remain as it was before the referendum.
Economic stability is undoubtedly the short-term priority. Fisheries may be particularly valuable in Aberdeenshire, Shetland or along England’s east coast, but the industry still comprises less than 0.1% of the UK’s GDP. As in the past, continued access for European fleets to British fishing grounds may form part of a final compromise between the UK and the EU.
Too complex to change overnight
Reforming the law will take considerable time and effort. A quick look at the marine management blue book, an online database of fisheries legislation, reveals more than 100 different laws or policy instruments at the EU and domestic level alone. Brexit does not mean fisheries will become simpler. Being in or out of Europe does not change the need for regulation to ensure fishing is conducted safely and sustainably.
Although most fisheries law is derived from the EU, there are important pieces of domestic legislation which may remain in force, regardless of Brexit. The UK’s territorial sea, continental shelf (seabed) and 200 nautical mile “exclusive economic zone” are established under domestic law, for instance. These will not require review, unless Scotland gains independence and so require the redrawing of international boundaries. Scottish waters comprise 62% of the UK total and contain many productive fishing grounds.
Brexit may provide an opportunity to update and consolidate some of the UK’s diffuse and dated fishing laws. Parts of the basic legal framework are nearly 50 years old now, such as the Sea Fish (Conservation) Act 1967. But these domestic laws are still interwoven with their EU equivalents. By itself, UK law does not provide anywhere near a complete regulatory regime for fishing and so, while some domestic laws may continue, there will need to be a wholesale review.
The Common Fisheries Policy
The CFP is the most important part of Britain’s fisheries regulation. And it will continue to apply until the UK formally withdraws from the EU. Even then UK vessels will still have to comply with EU rules on illegal, unreported and unregulated fishing if they want to sell their fish to Europe.
It has been a controversial policy. And one rightly criticised. Yet, it is something of an irony that reforms introduced in 2014 have begun to yield positive results. More stocks are being fished at the maximum sustainable yield, and economic efficiency has improved in some sectors. (with the exception of the Mediterranean). The North Sea has been an example of this, and British trawlers in particular have benefited.
While the CFP regulates fishing, the UK has wide discretion over who it allocates its quota too, generally favouring large, factory-scale ships. The Dutch-controlled Cornelis Vrolijk and Interfish ships, and the British firm Andrew Marr hold a 61% share of the UK quota. Legal challenges in favour of smaller, low-impact vessels have failed. This indicates Brexit may not entail a change in domestic allocation practices.
Global oceans, global deals
The UK is a party to both the UN Convention on the Law of the Sea 1982 (UNCLOS) and the Fish Stocks Agreement 1995. These treaties mean the UK will still have to negotiate and share responsibilities with neighbouring states in the waters around the UK, and on the high seas, regardless of Brexit.
UNCLOS entitles the UK to sovereign rights to explore and exploit natural resources in its exclusive economic zone. The call to “take back our seas” implies ownership or exclusivity – going it alone. This is unlikely. Under international law, coastal states are stewards, not owners, of their exclusive economic zone, and obliged to cooperate in fisheries management.
This may entail allowing foreign fleets access to fish stocks in coastal waters.
The EU currently represents the UK on the organisations that manage regional fisheries, either covering a particular area or a migratory species like tuna. The UK will need to secure membership in order to benefit from quota allocations of valuable fish such as mackerel. Yet it seems unlikely that the UK could simply continue on the same terms as its EU membership, and admitting new states is a headache as existing members want to maintain their own quotas.
Nonetheless, securing fishing agreements with EU neighbours is essential. The UK has too many maritime neighbours to ignore, and fish don’t notice or respect international boundaries.
These are just some of the challenges an already stretched civil service will have to meet if it is to uphold international commitments and ensure UK interests are advanced.
In our view, Brexit is unlikely to produce a radical revolution in fishing regulation and allocation. At least in the short to medium term. There is scope for change, but it must ensure fishing is conducted in a truly sustainable manner, and in a way that ensures the integrity and security of marine ecosystems. Britain can’t do this alone – even after Brexit.