The government (that's the one in the UK not the real one in Brussels) has been conducting a balance of competences review on various subjects, as this blog mentioned some time ago. FAL has submitted its statement on the subject of fisheries and there is a summary in the latest Newsletter:

There is being undertaken by the UK coalition Government a Balance of Competences review between the powers of the UK and the EU and how this affects the UK national interest. Part of this review calls for evidence on fisheries policy and is part of a wider cross Whitehall initiative considering 32 policy areas “designed to provide a constructive and serious contribution to the wider EU debate about how to modernise, reform and improve the EU.”

However some might consider it to be window dressing to appease the Conservative Eurosceptic MPs. Be that as it may let’s consider the following:

David Cameron has talked about a new settlement, a new relationship with Europe or more correctly with the EU.

Not to put too fine a point on it, this is stuff and nonsense.

The reason is the existence in EU law of the “acquis communautaire” - the entire body of EU laws, including all the Treaties, Regulations and Directives passed by the Institutions, as well as judgements laid down by the Court of Justice.

The “acquis” for fisheries is free access to waters on a non discriminatory basis for all member states' fleets (access to resources being based on the principle of relative stability for regulated species and unrestricted for non-regulated species).

1. In 1981 the European Court of Justice ruled that the EEC had exclusive competence to adopt fisheries conservation measures in Member States waters

2. EU exclusive prescriptive competence implies that Member States are precluded from any law-making.

3. Member States may not act validly unless treaties or secondary provisions say so.

FAL has just submitted its response to the above Review. It highlights a number of facts and opinions that demonstrate that exclusive competence is the chokepoint for a successful UK fishing industry; that it has resulted in the destruction of businesses and communities and that unless such competence is returned to the UK, further reduction of the British fleet and the communities it supports is inevitable.

Anyone interested in obtaining a copy of this submission by email please contact me at roddy_AT_mccollassociates.com

It is worth remembering that any organization or, even individuals with specialist knowledge can submit a response to the Review.

It was the UKIP peer, Lord Willoughby de Broke who referred to fishing as one of the competences this country has lost to the EU over the years, during the Second Reading of the EU Referendum Bill in the House of Lords on January 10.

Many of the powers were given away, as I will tell noble Lords in a minute, without the British people ever being asked whether that was what they wanted. Treaty after treaty—Maastricht, Nice, Amsterdam, Lisbon—drained ever more power away from the British Parliament at Westminster and from the people of this country and channelled it to the unelected bureaucrats in Brussels. Very little that matters is now left to the Westminster Parliament, which has nothing at all to say about the economy, immigration, energy, trade, agriculture, fisheries and social policy.

That happens to be the truth. All else is moonshine. That is the position from which we must move forward.

There is an interesting article in The Scotsman by Simon Collins, the Executive Officer of the Shetland Fishermen's Association, entitled Scots fishermen face tidal wave of red tape. We cannot really argue with the essence of that title only with the implication that somehow they did not face that tidal wave before. But then Mr Collins, while capable of seeing some of the effects, seems unable to understand the main cause of the problem, being rather a supporter of the European Union and of the Common  Fisheries Policy or so it would appear from this article.

Mr Collins starts by giving a lyrical description of the Shetlands and its fishing industry but soon switches to the problems, which are well known: too much regulation, no attention paid to what fishermen want or know, decisions taken centrally regardless of what happens in reality. Yes, yes, yes. We have been saying the same thing and blaming on the Common Fisheries Policy, which is dedicated to all those ideas.

Not so Mr Collins. He thinks the EU is a splendid institution, really, but the Commission is a bit of a problem.

The Commission is an unelected body of career bureaucrats dedicated to the implementation of European law and the enforcement of what it regards as EU policy. It has long outgrown its original role as an administrative arm at the service of elected European leaders, and is now firmly convinced of its right to frame policy as well as implement it. In many areas of life, this might not matter too much. Brussels’ tentacles do not extend absolutely everywhere. Unfortunately for the fishing industry, and especially so for island communities like Shetland that depend so heavily on it, fisheries conservation is one of the few areas of “exclusive competence” reserved to the European Union.

Well, up to a point, Mr Collins. The Commission is certainly "an unelected body of career bureaucrats" but it was never envisaged as "an administrative arm at the service of elected European leaders", whoever they might be. As it happens, the EU has no elected leaders.

The Commission is seen as the guardian of the treaties, which are in their consolidated form, effectively the constitution of the European Union and of its member states. That includes the United Kingdom and will include, should things turn out that way, an "independent" Scotland within the EU (a contradiction in terms if ever there was one).

Furthermore, the Commission is, according to the rules laid down by successive treaties, the sole originator of legislation in the EU. Proposals mostly go to the Council and the European Parliament but if there is disagreement between those two bodies, the Commission, also according to the rules laid down by the treaties acts as the co-ordinator of the legislation.

In other words, it has always been far more than just an administrator that carries out politicians' instructions (incidentally, Commissioners tend to be politicians) and that is because the creators and supporters of the EU or those of the latter who understand the structure do not believe in governance by politics: they consider that it should be done by management as politicians tend to be short-sighted, governed by party loyalties, yadda-yadda-yadda.

Thus, the idea, expressed by Mr Collins that if politicians in the EU just get a grip on the Commission, clip its wings and contain its powers all will be well comes from that well known volume: Tales of Porcine Aviation. It is the Council, who are, indeed elected politicians (at least nominally) who make the decisions on fisheries, which, as Mr Collins rightly points out, is and has been since 1970 wholly EEC/EC/EU competence.

What good does it do us that they are elected? They are not elected by us. There are 28 members in each Council of Ministers and they are not going to pay too much attention to the Shetland Islands, Scotland or the UK if they can do a deal for their own benefit. As this blog has mentioned before, the UK does not take part in discussions about fishing in the North Atlantic and neither will an "independent" Scotland within the EU. Iceland, Norway and Russia do plus Greenland through Denmark. The EU will negotiate on our behalf as it sees fit and much of that negotiation, as we have pointed out over and over again, will not be based on knowledge and information supplied by fishermen or their organizations and not even on scientific evidence but on political calculation. That is how it will be as long as we remain in the Common Fisheries Policy.

DEFRA has responded to the points made by FAL as enumerated in this posting. They seem to agree with us.

Dear Mr McColl,

Independent Scotland & Fisheries

Thank you for your email of 29 November providing your views on the fisheries content within the white paper ‘Scotland’s future - Your Guide to an Independent Scotland’. I have been asked to reply.

The Government agrees that the analysis in the guide underestimates the challenges for an independent Scotland negotiating in the EU as a small member state. It is the UK Government’s view that Scotland’s interests are best represented by being an integral part of the UK.

I would also encourage you to respond to the Fisheries Balance of Competence Review Call for Evidence that is open until the 13 January. The review is looking to gather evidence from stakeholders such as you, with experience and understanding of what EU membership means for UK fisheries. The review will provide an informed and objective analysis of the impact of the EU’s power to act and aims to deepen public and parliamentary understanding of the nature of our EU membership. We are keen to hear your views and ensure the report reflects the range of views held by stakeholders on these important issues. Further details on the review can be found at:

https://consult.defra.gov.uk/eu/boc-fisheries

FAL will be submitting evidence. May we encourage other organizations and individuals to do so as well.

Merry Christmas to all our readers.

As the SNP's intention is to have an "independent Scotland within the EU", we cannot do anything but put that word in quotation marks. Whether you want to be in the EU or not (and we do not), that is not independence, merely membership.

On Wednesday the White Paper, Scotland's Future - Your Guide to an Independent Scotland (not forgetting our proviso) was launched. Also to be found on the Scottish Government's website.

Chapter 8 deals with Environment, Rural Scotland, Energy and Resources, the first two of which entirely and the last very largely are EU competences, so the role of the "independent" Scottish government and parliament will be to implement those directives, regulations and decisions.

Fisheries comes under that heading, too. (See p. 282 in the pdf document or you can download it as an e-book but you will still have to find p. 282.)

In 2012, Scotland accounted for 87 per cent of the total value of UK landings of key stocks, representing 37 per cent of the Total Allowable Catch (TAC) of these stocks available to the EU. However, Scotland receives just 41 per cent of the European Fisheries Fund allocation to the UK, despite having a far higher share of both the UK sea fishery and aquaculture sectors. As a result of being a low priority for the UK in EU negotiations, Scotland receives just 1.1 per cent of European fisheries funding despite landing 7 per cent of the European Union’s wildcaught fish310 and accounting for more than 12 per cent of EU aquaculture production. Scotland is the world’s third largest salmon producer with 83 per cent of UK aquaculture production by volume.

Our fishermen need a voice at the top table in Europe. Despite two thirds of the UK industry being based in Scotland, Scottish Ministers have not been allowed to speak on behalf of the UK in Europe, even on occasions where the interest is almost exclusively Scottish. This means that Scotland’s representatives – who are closest to the needs of the Scottish fishing sector – are not able to ensure that their voice is properly heard.

Which is all very well but a couple of things seem to have been neglected: Scotland's voice is not going to be particularly strong as it will be a small member of the European Union with very few votes in the Council; and, secondly, many of those problems go beyond the EU and Scotland as a member state will not be taking part in negotiations with Norway or Iceland as the EU will be doing it on the country's behalf.

There is a great deal more of the same but those two problems are not even mentioned, let alone responded to. Just how will an "independent" Scotland ensure that it gets anything at all out of the negotiations within the EU where decisions are taken by 28 countries and how will it ensure that its interests are adequately represented in international negotiations? After all, it is not going to be like Norway.

Here is the list of priorities for action:

Our priorities for action

If in power after the 2016 election we will:

■■ prioritise the needs of the Scottish fishing industry and aquaculture in European negotiations

■■ protect Scotland’s fishing quotas, preventing fishing quota being permanently transferred outside Scotland and safeguarding Scotland’s fishing rights for future generations

■■ use Scotland’s fishing levies to promote Scottish seafood. In an independent Scotland the industry’s levies will remain in Scotland to support the Scottish industry’s objectives and priorities for our catching, onshore and wider seafood sectors,

We are sorry to have to point out that whoever wrote those words does not even begin to understand how the Common Fisheries Policy functions, let alone what its purpose is.

No doubt, readers of this blog would have heard the Prime Minister and other fervid supporters of Britain's EU membership talk dismissively of Norway's position in the European Economic Area (EEA) but not in the European Union (EU).

Or, in other words, Norway is in the Single Market but is not part of the rest of the EU legislation and is very jealous of her ability to dismiss that legislation if it does not suit the national interest as not being part of what they had agreed to when the EEA Agreement was signed. The UK, let me remind my readers, can do no such thing. Mr Cameron, this country's Prime Minister, does not think that would suit Britain as that would mean that we would just "“just accept all the rules of the Single Market, pay for the privilege of being part of it and, as it were, be governed by fax rule".

Let us be charitable and assume that it is ignorance rather than a desire to be economical with the truth that inspired Mr Cameron to make that statement.

A new paper published by the Bruges Group, The Norway Option by Dr Richard North, goes into the subject in some detail, showing how many of the decisions the EU implements are actually made at a higher, international level and how important Norway's role is in a number of those organizations while the UK is represented by the Commission and, possibly, the Council.

Fishing does not come under the Single Market though the original CFP was set up through sleight of hand, by using Treaty Articles that applied to trade. (Here, here and a letter by Tom Hay here.)

Let us now have a look at how "powerless" Norway, who remains outside the CFP,  is in the question of fisheries. This is what Dr North writes on page 16 of the pamphlet:

As regards the European Union, the EU ratified the UNCLOS [UN Convention on the Law of the Sea] agreement in 1998, and subscribes to the FAO codes, the combination being part of the external dimension of the Common Fisheries Policy.42,43 Although the CFP is not part of the internal market acquis and is not part of the EEA Agreement, trade in fish and fish products is covered, and to some extent is affected by these international treaties and agreements. Norway, of course, represents herself on the relevant bodies, but EU Member States are represented by the European Commission and the EEAS[European External Action Service].

As regards the CFP, much of the current provisions are hedged by the international agreements, to the extent that it would be very difficult for individual member states to formulate their own independent policies. This is especially the case as the EU has also concluded or is party to multiple bilateral and multilateral treaties with neighbouring fishing states. For instance, it lists eleven with Norway, of which three are bilateral, eight with Iceland, and one with the Faroes. These inter-relate with regional organisations such as the North East Atlantic Fisheries Commission (NEAFC), to which the Russian Federation, Norway, Iceland, Denmark (in respect of the Faroe Islands and Greenland) and the European Union are parties.

Even before that, on pages 12 and 13 we can read this:

Codex Alimentarius promulgates international food standards, which are then adopted regionally and locally. All EU Member States are members of the governing commission. In 2003, the European Community joined, sharing competence with EU countries depending on the level of harmonisation of the respective legislation. Since the entry into force of the Lisbon Treaty on 1 December 2009, the EU became the body of record. The EU and its Member States draw up EU position papers on the issues discussed in the Commission, the various Committees and Task Forces. The Committee on Fish and Fishery Products is hosted by Norway.

Just in case anyone can misunderstand the implications, on page 31 there is a clear explanation:

For another example, in Codex Alimentarius negotiations, the UK and other EU member states have ceded authority to the EU on some technical issues, allowing exclusive EU “competence”. By contrast, Norway is not only an independent member but, in hosting the Fish and Fisheries Products Committee, is the lead nation globally in an area of significant economic importance to it. It is thus able to guide, if not control, the agenda on standards relevant to this product group, to which the EU then reacts. In all respects, Norway has a far greater say in Codex Alimentarius affairs than does the UK.

Outside the framework of the EU, Norway is thus able to make its voice heard on the international stage, permitting it to express its own interests and take up its own negotiating positions. It can also initiate rules on its own account, without first having to seek EU approval. It has, for instance, been particularly active in exploiting the opportunities afforded by international conventions.

Whether anybody really legislates or imposes rules by fax in this day of e-mail is an interesting question but whoever does that it is not the EU on Norway. It might happen the other way round. Oh, and let us not forget that in negotiations about fishing in the North Sea the UK is represented by the EU (as will be Scotland should it ever achieve that glorious aim of "independence within the EU"). Norway and Iceland represent themselves.

Purely technical problems (with internet access rather than fishing nets) made it impossible to post for a couple of weeks but we are now back and will post with renewed vigour.

Some catching up is in order. The European Parliament voted on October 23 "on the European Maritime and Fisheries Fund, EMFF. The proposal to subsidise new vessels was rejected. MEPs voted for a cap that would force member states to choose between new engines and new jobs for young people".

So, Mr Cameron et al, what happened to that idea of restoring some control over fisheries to the member states who are actually doing the fishing, assuming they are allowed to do so? Should they not be the ones to decide what they want to do and plan according to what they see as the best way forward for their fishing communities?