Fishy arguments.

Professor Chris Grey’s long read analysis on the complexities of the Brexit fishing row, how they do/don’t relate to the Northern Ireland Protocol row, why ‘remainers’ needn’t pick a side, and why Brexiters can’t turn the clocks back.

It’s been a horrible week for Brexit news, and a depressing one for any hope that UK-EU relations will settle into harmony or, at least, pragmatic cooperation. Careful readers of this blog will have been primed for the resumption of the Jersey fishing rights row this autumn, and almost everyone expected a crisis over the Northern Ireland Protocol (NIP). With both happening simultaneously, it’s important to understand how they do and don’t relate to each other, not least because it’s clear that the Brexiters and the government are intent on lumping them together in false and hypocritical ways. But that’s also a difficult task because each of them involves considerable complexity – hence an even longer than usual post.

Fishing licences row

As regards the row over licences for French boats, it is a complicated story as fishing stories always are. It is partly about the issuing of licences to fish in the 6-12 nautical mile zone by the UK generally (licences for the 12-200 mile zone are effectively granted automatically). However, the central issue relates to the large number of rejected or outstanding applications to fish in Channel Island waters, which first erupted in May. That adds another layer of complexity because of the distinctive constitutional status of the Channel Islands.

Jersey and Guernsey

The Jersey dispute arises from Brexit because the Trade and Cooperation Agreement (TCA) superseded the Anglo-French Granville Bay Agreement. The latter agreement was originally created, following numerous disputes between Jersey and France, in 1839 and was updated in 2000 with implementation in 2004. Scrapping it as part of Brexit was strongly lobbied for by the Jersey Fishermen’s Association during the TCA negotiations. Separately, the UK also chose to leave the 1964 London Fisheries Convention causing problems for fishing around Guernsey, Alderney and Sark.

As well as having that difference in historical background, the Guernsey problems have so far been quietly dealt with because its approach has been to issue interim licences until 31 October 2021, automatically renewable monthly until full new licences are issued in December to be in force from 31 January 2022 [1]. By contrast, the Jersey approach has resulted in a mixture of boats fully licensed, boats temporarily licensed until 31 January 2022, and boats which had an ‘amnesty’ until, in effect, 31 October 2021 but with no renewability unless transferred to the temporary licensing list. It is the latter boats which are at the centre of the row. This Guernsey-Jersey distinction is a niche issue, to say the least, yet it seems an important and neglected part of the story.

Bogus comparisons

At all events, it is crucial to grasp that this row is primarily over licences for Jersey waters, which are issued by the Jersey government, given that central to France’s complaint is an alleged disparity between the UK’s treatment of its boats and those of other EU states. Thus Clément Beaune, France’s Minister for European Affairs, tweeted in response to David Frost that whereas about 90% of all EU licence requests had been granted by the UK [2], France had not received licences for 40% of its requests. The implication was that France was being discriminated against.

However, it was a bogus comparison because the majority (59%) of France’s ungranted licences are applications to fish in Jersey waters, and France seems to be the only EU country with boats applying for such licences (certainly, all licences so far granted by Jersey are to French boats). Moreover, all of the small (under 12-metre) boats and about 80% of the large boats seeking UK (not Channel Islands) 6-12 mile licences are French. It is these smaller boats which are far more likely to have ungranted licences because they tend to lack the expensive GPS systems needed to readily provide the data required to prove they have a historical record of fishing in the relevant waters.

This means that, as a matter of simple arithmetic, France’s number and proportion of ungranted licences is bound to be far greater than any other EU country, not because it is being discriminated against but just because it is the only EU country involved in the vast majority of relevant applications (i.e. small boats in the inner zone around the UK and Jersey). It would be equally absurd to say that, because all the Jersey licences for EU boats have gone to France, it has been specially favoured! In fact, the only inter-country comparison that can be made for the applications over which the UK has discretion is between France and the other country seeking large boat licences in the UK inner zone, Belgium, which has 19% of its licences still pending (i.e. 81% granted) whereas France has only 3% pending (i.e. 97% granted).

This isn’t to say that France has no grievance at all – a key point is that had the TCA negotiations not been so truncated, at British insistence, the details of licensing data requirements for small boats could have been agreed. Nor is France behaving particularly heinously. After all, it’s hardly the only country in the world to make bellicose noises about fishing rights! But the grievance is not especially serious (although of course it matters hugely to the fishermen affected) and it’s not the grievance of discriminatory treatment claimed.

Contradictory conduct

Moreover, France’s conduct has been somewhat contradictory. On the one hand, it has been acting as if this were still an Anglo-French matter. That is despite the fact that France, like Jersey, had wanted Channel Islands fisheries to become part of the TCA - although, interestingly, during the May crisis, the French Minister of the Sea called for the Granville Bay Agreement to be reactivated and in September France called for a revival of consultative process of the old agreement. Yet, on the other hand, it has been seeking to make it a UK-EU dispute.

These are contradictory to the extent that, viewed as a UK-EU dispute, making threats of unilateral French action against British boats and imports, or raising energy supply tariffs to Jersey, is not only arguably disproportionate to the grievance but also arguably illegitimate. The UK government has suggested such action would be a breach of the TCA. The French argument is that it would be ‘retorsion’, falling outside of the Dispute Resolution Mechanisms of the TCA [3]. Yet, at the same time, French Prime Minister Jean Castex requested concerted EU action in a letter to European Commission President Ursula von der Leyen which was leaked last weekend (and of which more later).

In fact, the European Commission has been notably unwilling to ‘take France’s side’ or to escalate the row politically, perhaps recognizing that the grievance claim is rather overblown. Rather, it has acted as a broker, arranging technical meetings between British, French and Channel Island authorities. This led (unless it was a coincidence) to Jersey issuing some forty-nine further licences on Monday, and France subsequently suspending its threat of unilateral sanctions. On Thursday, Frost and Beaune met – itself perhaps slightly odd if this is seen as a UK-EU dispute – without apparent outcome but with no new flare-up of hostilities either. This isn’t the end of the story as there are still talks to come, and the new licences granted are only temporary, but as the week has gone on the row has certainly de-escalated.

Yet much damage has been done. Apart from a further deterioration in the Anglo-French relationship, Brexiters and the UK government have been all too keen to build upon the conflation of the Anglo-French and UK-EU aspects of the row to try to link it with their wider confrontational approach to Britain’s post-Brexit relations with the EU, especially as regards the NIP. So, in what was already a fraught situation, the fisheries row has exacerbated a “poisonous atmosphere” for the NIP talks (£).

Northern Ireland Protocol row

The NIP is bound up with a similarly long and far more fraught history, this time between the UK and Ireland, which is far too complex to review here. Crucially it too grows from (though does not supersede but seeks to accommodate) a situation defined by a pre-existing agreement between two member states of the EU, i.e. the 1998 Good Friday (Belfast) Agreement (GFA). Moreover, this agreement was to a large degree predicated upon both parties being member states, in that the EU single market and customs union had removed the need for an economic border between Ireland and Northern Ireland prior to the GFA and thereby created an important pre-condition for it.

So in both cases, inter-governmental relationships became ameliorated by being enfolded within common membership of the EU and have been disrupted by Brexit. It’s not difficult to see how the longstanding UK-Spain dispute over Gibraltar falls into the same category, for all that it isn’t currently so fractious. The argument that the EU played a role in maintaining peace was mocked by Brexiters during the referendum campaign with the reductio ad absurdum that to point to it was to predict that Brexit would mean World War Three. But it is a fact that many longstanding disputes between member states have, at least, been de-escalated by virtue of membership of the EU.

Indeed, that’s underscored by Boris Johnson’s call upon Ursula von der Leyen to intervene in the fishing dispute with France. Actually, as an interesting article by Gideon Rachman suggests this week (£), it is probably the US which is best-placed to act as some sort of mediator between the UK and France over their now constant acrimony. The same may well be true as regards UK-EU relations, and if the NIP row escalates to a UK invocation of Article 16, as many expect, I wouldn’t be surprised to see some such initiative from Joe Biden’s administration, for all that the Brexiters distrust him.

Differences and connections

However, although in both cases Brexit has thrown up new problems, they are problems of a fundamentally different sort. As regards fishing rights, the French accusation is that the UK is not sticking to what it agreed in the TCA, but not questioning the terms of what was agreed. As regards Northern Ireland, the UK accusation is, first, that the EU is sticking too rigidly to what was agreed in the NIP and, second, that the terms of what was agreed are unacceptable.

Yet despite being different in these ways, both sides see the issues as being linked. For France, and perhaps the EU, they are both examples of UK duplicity and bad faith. This may well be unfair to the UK in terms of fishing licences, but it is certainly not as regards the NIP and goes to show the high price to be paid for serial dishonesty: it completely undermines credibility.

For the UK, what is now erroneously being called ‘the punishment letter’ from Castex to the European Commission President about fishing licences is being used to suggest that the EU’s entire approach to Brexit, including the NIP, is one of seeking to punish the UK. As ever, the liar-in-chief is Boris Johnson, who said (£) that Castex was “explicitly asking for Britain to be punished for leaving the EU”. In fact, the word ‘punish’ or its cognates didn’t appear in the letter. The relevant sentence would best be translated as “It is essential to clearly show to European public opinion that respect for commitments made is non-negotiable and that there is more damage in leaving the union than in remaining there.”

As such, this is just the boilerplate EU position that it must be demonstrably better to be a member than not to be, otherwise the union, like any other, has no purpose. Actually, If anything, the EU’s conduct over the fishing row, which has been placatory and not markedly supportive of France, shows the opposite of a punitive stance to Britain.

By pretending that the letter threatens ‘punishment’, an ever-present Brexiter myth is being invoked, as when in 2017 Johnson spoke of France trying to “administer punishment beatings”. In this current invocation, it uses what Castex (didn’t) say as regards fishing to bolster the longstanding falsehood that the NIP and ultimately the entire issue of the Irish border was invented by the EU to punish the UK for Brexit and that they succeeded because of the failures of Theresa May’s government. Notably, this position was re-iterated in David Frost’s foreword to a Policy Exchange document on the NIP published this week.

So there is a triple lie here: a lie about what Castex said about the fishing row, a lie about the reasons for the NIP, and a lie about the implications of the fishing row letter for the NIP row. The latter lie involves an entirely opportunistic and false equivalence, in the same way as that endlessly drawn between the quickly abandoned EU proposal to invoke Article 16 over vaccines and the UK’s current threat to do so.

No need to take sides

Because of this incontinent flood of lies, there is a temptation for erstwhile remainers to ‘side with France’ in all aspects of the fisheries row. It is also tempting because the Brexiters are trying to use the row with France to drum up jingoistic support for Brexit just at the time that the economic damage of Brexit is becoming so obvious. But these are not good reasons to support France’s stance, any more than they were when some sought to defend the EU’s Article 16 foolish mis-step over vaccines in the face of the Brexiters’ lies and jingoism about that.

It is neither necessary nor right to embrace the ‘them versus us’ logic of Brexiters. The dividing line on both the fishing and the NIP issues is a clear and principled one which is solely about who is abiding by, and who is flouting, the terms of what was agreed. Being sucked into supporting France when it is not especially warranted simply plays into the hands of those Brexiters who want to paint ‘remainers’ as unpatriotic, and to use such tactics to discredit or divert attention from the follies of Brexit. It also undermines the legitimate defence of the EU’s position as regards the NIP by enabling the accusation that those who are opposed to Brexit blindly support the ‘other side’, using their stance on the fishing row as proof.

On the other hand, it is perfectly justifiable to point to the hypocrisy of the Brexiters and the government. After all, they constantly call for the EU to be ‘flexible’ in its implementation not just of the NIP but also of import controls generally (remember the outcry over the ‘ham sandwich confiscation’). So why not offer flexibility over fishing licences, especially as the row revolves around a few small boats? Equally, for all that the French threats of unilateral action were unjustified, it is rank hypocrisy for the government to be invoking respect for international law and good faith when it has shown so little of either over the NIP.

The clocks (don’t) go back

As to that, Frost continues to escalate the rhetoric, which suggests that the triggering of Article 16 is in the offing and, with that, as the Irish Taoiseach warned this week, a very serious crisis. Frost meets Maros Sefcovic today, which may yield further clues as to whether that will happen. However, as I’ve repeatedly argued, there is little point in speculating about the intentions of a government whose intentions are entirely opaque, perhaps even to itself.

That said, reports that the government plans to rig the legal advice to justify invoking Article 16 (£) are very ominous. And the Policy Exchange document Frost forwarded makes it clearer than ever that Brexiters see phase 1 of the Article 50 negotiations, in 2017, as having being pivotal (correctly, in my view, though I don’t agree with their explanation or conclusions). Equally clearly, they, and more particularly Johnson and Frost, think they can use Article 16 to re-wind the clock and have another shot at getting ‘true Brexit’.

Whatever else happens, they will fail in that. History, politics, and indeed physics, don’t work like that. As for ‘true Brexit’, it remains as elusive as ever, the fading illusion of a dwindling number of the deluded and the deranged. All we have are the realities of Brexit. These, in the form of this week’s bickering and dishonesty, have been on display to the world because of COP-26, with a cringingly ‘larky’ speech from our manifestly inadequate Prime Minister.

Imagine how different that might have been had the UK still been a leading partner within the huge EU economic and diplomatic power bloc. Or imagine if, as the Brexiters promised, the UK was striding self-confidently forward as Global Britain, admired and respected throughout the world, rather than the laughing stock Brexit has made us. Amongst the many crimes of Brexit is to have robbed us of the former possibility on the fraudulent prospectus of the latter. There’s no way to turn the clock back on that.

Notes

[1] This also means that the implied complaint in the Castex letter that Guernsey has issued no permanent licences, and therefore fewer even than the UK and Jersey, is misconceived – it is only because that point in the process hasn’t been reached, but French boats are able to fish in Guernsey waters in the meantime. This is quite different to the situation of those boats which have neither permanent nor temporary licences from Jersey.

[2] The UK government gives the figure as 98%, but this is misleading, especially in the context of this row, as it excludes the Channel Islands figures. With those taken into account the French claim of about 90% is right (in fact, it’s closer to 88% on the basis of the UK government’s statement of licences issued as at 3 November – this statement is the source of all the statistics cited in this post for licences granted other than where other links are provided).

[3] The entire situation is a complicated one because the specific fisheries dispute settlement mechanism within the TCA does allow some retaliatory measures to be taken in advance of arbitration, but with various rules and processes attached. A further complication is that some of the provisions within that specific mechanism don’t apply to the Channel Islands. And yet another complication is that the UK government seems to be envisaging a counter-action to any French actions under the general TCA disputes settlement mechanism rather than that specific to fisheries. I don’t pretend to have any expertise at all in this arcane topic but for those seeking to make sense of it there is an Institute for Government overview, a more detailed House of Commons Library briefing, and a lengthy blog post on Professor Steve Peers’ EU Law Analysis website. I’m very grateful to Professor Peers for answering my queries on this topic whilst preparing this post – all errors are of course my own.

Sources

• Text: This piece was originally published in Brexit & Beyond and re-published in PMP Magazine on 8 November 2021, with the author’s consent. | The author writes in a personal capacity.
• Cover: Pixabay/blende12. (Licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.)