On 6 May, the most important election day since the 2019 general election, the British people woke up to the alarming news that the Royal Navy had been deployed to prevent the harbour at St. Helier, Jersey, from being blockaded by what was described as “an armada” of French fishing boats. Was this a fake row designed to play to the populist gallery or was there something serious behind the argument?
The Channel Islands were never part of the European Union during UK membership. Instead, under Protocol 3 to the UK’s 1972 Accession Treaty, they had a special position in which they were in the customs union and in the Single Market for goods only.
Under this arrangement, the small fisheries sector in Guernsey and Jersey did not come under the EU’s Common Fisheries Policy (CFP) but had a separate agreement with the UK Government that they would comply with the UK’s CFP obligations. In practice, this meant that the Guernsey and Jersey catches formed part of the UK’s CFP Total Allowable Catch. In addition, Guernsey and Jersey vessels are British flagged and were treated as EU vessels when they landed fish in an EU Member State (but only for that purpose).
Article 502 of the Trade & Co-operation Agreement (TCA) between the UK and the EU deals with fishing off the Channel Islands and the Isle of Man. It grants fishing rights to vessels from these islands and from the EU to fish in each other’s waters “reflecting the actual extent and nature of fishing activity that it can be demonstrated was carried out during the period beginning on 1 February 2017 and ending on 31 January 2020 by qualifying vessels of the other Party in the waters”. In other words, the TCA preserves the historic fishing rights of the French fishermen off Jersey and Guernsey and those of the Channel Islanders in EU waters.
The Article then provides detailed definitions for all the terms used, specifies a minimum number of fishing days and makes other requirements. It is important to note that Channel Island waters form part of the UK’s Exclusive Economic Zone.
The Article is much more generous to EU fishers than other access provisions in the TCA in that it means no reduction in EU (i.e. French) vessels’ access to Channel Island waters, whereas elsewhere, EU vessels’ access is to be reduced to take account of the changes in quota shares agreed in the TCA, and also if Total Allowable Catches reduce.
So why the row? The Jersey authorities will know exactly which French vessels were operating in their waters and, with goodwill, could provide the new licences without difficulty. But the authorities have chosen to demand proof and impose conditions which the Commission has asserted are incompatible with the TCA and which prevent some French vessels enjoying their Treaty rights to fish in Jersey’s waters.
Part of the explanation may be that Jersey fishermen complain that they have been banned from landing their fish in France because of EU sanitary and phytosanitary rules (SPS), which has caused a dramatic loss of business for them in the last four months.
The problems in the Channel Islands highlight two issues where the British side made massive mistakes in the negotiations with the EU:
- They mismanaged the expectations of the fishing sector, which believed they were going to be the big gainers from Brexit. But it must have been very clear to HMG early on that the outcome on fisheries was going to fall far short of expectations.
- The decision to leave the EU SPS zone has been catastrophic for many food businesses not only in the Channel Islands but elsewhere, including Northern Ireland. HMG must have known that the EU is highly risk averse as regards anything to do with food and that it polices animal health and food safety regulations rigorously. Yet for ideological reasons (refusal to follow EU rules) HMG chose to stay out.
But there are others lessons too. One of these is the difficulties caused by the completely unnecessary haste in implementing the TCA. There needed to be a proper transition period. Secondly, and not just in terms of fisheries, the TCA will only work if there is goodwill on both sides. As we have seen, that’s lacking amongst the fishing communities on both sides and there has still not been an overall agreement on shared Total Allowable Catches (something that would normally be expected to happen prior to the start of the calendar year and which forms the basis of the access rights). There have been issues around the granting of licences to fish in UK waters more generally than just the Channel Islands, so perhaps what is happening in Jersey is the tip of a larger iceberg.
Nick Kent is Director of the Senior European Experts Group
Andy Lebrecht was UK Deputy Permanent Representative to the European Union, 2008–2012
The authors are grateful to Graham Avery and David Hannay for commenting on an earlier draft of this post.
