“The UK will not be taking control of our waters”

Friday 16 October 2020

Jersey has strongly rejected an “unwarranted and completely unnecessary” attempt by the UK to extend its influence over the Crown Dependencies.

External Relations Minister Ian Gorst said that he had no idea why Westminster wanted to extend its new Fisheries Bill to Jersey but it was a “ridiculous” move because any attempt would have to be passed by the States, which he was certain would not happen.

And he said that if the spat did lead to a constitutional crisis, it would be the UK’s and not Jersey’s.

On Tuesday afternoon, during one of the bill’s final stages in the House of Commons, Fisheries Minister Victoria Prentis amended the legislation to add a ‘Permissive Extent Clause’ (PEC), which paves the way for the UK to exert greater control over Crown Dependencies on fishing matters post-Brexit.

The UK Government said it had included the PEC to ensure the islands remained compliant with international obligations and that it would only be “used as a last resort.” 

There is no reason to extend parts of the UK Fisheries Bill to Jersey. The inclusion of a Permissive Extent Clause is unwanted and completely unnecessary. Jersey remains in full control of its fisheries legislation and territorial waters. pic.twitter.com/Xx9dPZAhzi

— Senator Ian Gorst (@Ian_Gorst) October 15, 2020

Pictured: Senator Gorst addressed Islanders yesterday to strongly reject the UK government's attempt to take greater control over Jersey's territorial waters.

This was despite strong protest from Jersey’s government - who had been told about the plan to add the PEC several weeks ago - that there was no need to include such a clause.

Mrs Prentis told the Commons: “The Government feel that it is important, given that these are significant matters of international law, that we retain the ability to legislate for the Crown Dependencies if they do not show the inclination to do so when needed.”

Pictured: Victoria Prentis MP is the Parliamentary Under-Secretary of State for Agriculture, Fisheries and Food. Credit: Creative Commons

Express met with Senator Gorst to ask for his reaction to the UK government’s unilateral and unwanted act.

What do you think Mrs Prentis meant by her comments in the Commons?

“I have no idea what she meant by that. You need to ask her because we have made it very clear, as have our colleagues in Guernsey, that is it completely inappropriate. 

“We did not want a PEC added into the legislation, therefore it is constitutionally inappropriate and, equally, it is unnecessary. Because, as she indicated, we have up until this point always given appropriate effect to any international obligations that we might have under the domestic law.”

Why do you think the UK government included it?

“It must be for the very reasons that she said - but, to my mind, that is not a strong argument or reason for doing it. The ridiculous thing about this is that in order to give effect to a PEC, an Order in Council has to be issued under Jersey law, registered in the Royal Court and laid before the States by the Chief Minister for States approval.

“And I would not support that approval, nor recommend it, and I don’t for a minute think the States would agree to it either. 

“More importantly, of course, we always responsibly give effect, in Jersey legislation, to our international obligations. And we will continue to do so, so it is completely unnecessary.”

Do you think that Boris Johnson’s government is going to pay any attention to a States decision?

“The UK government cannot ignore that because it works the other way around: if they ever got to the point of issuing an Order in Council, it would not be a problem for us because we would not give effect to it; instead, it would be a constitutional problem for the United Kingdom, not us.

“Of course, there are cases when a PEC might be appropriate, and the normal constitutional appropriate process would be for us to speak to the UK government and say, with any given piece of legislation, we would like you to put in a PEC so that we can have an Order in Council and give effect to it in Jersey law through that process.”

But after this episode, can Jersey ever trust the UK Government to act on its behalf in international matters, as it is constitutionally obliged to do?

“Any government can disagree with another government from time to time. That is the nature of international diplomacy. We will continue to make our point whether the UK government accepts it or not, or in this instant, if Defra accepts it or not. That doesn’t change the facts as we see them in this regard.”

On Thursday, former External Relations Minister Sir Philip Bailhache, told Express that the activation of the PEC would lead to a constitutional crisis. Do you agree with your predecessor?

“There would not be a constitutional crisis from our perspective because we would not give effect to the Order in Council. However, it would cause a constitutional issue from the United Kingdom’s perspective. And we would deal with that, should it arise.”

Can you still fight against the inclusion of this PEC in the bill?

“The bill has to go back to the Lords and we continue to speak to members there and in the House of Commons before it comes back for other readings. We also continue to make representations to Defra, and Defra ministers.

“But more fundamentally, we continue, as we have always done, to act as responsible international citizens and to give effect in Jersey legislation to any international obligations we might have, and in this particular case, in regard to fishing or any fishing agreement that might come out of the Brexit negotiation.”

Does this unilateral act by the UK give us a licence to work more unilaterally ourselves, particularly with the French?

“We already work under a methodology called ‘entrustment’ to sign agreements with other parties, and other countries, so that doesn’t change. Of course, nor does it change the process going on in London and Brussels around the negotiation of a future trade relationship between the UK and ourselves, and Brussels. That is ongoing and separate to this issue.

“If there is no deal coming out of those negotiations, then, of course, we would probably seek to have an entrustment to negotiate an agreement that would be in our interests with Brussels directly, perhaps mirrored on the approach they have with other micro states.

Is this a lesson to you that we need to be more belligerent in external relations and take off our gloves with the UK?

“I’m not sure I could get more bellicose with them. I don’t do it publicly, other than when the need arises, but we leave the UK government with absolute clarity about what our position is, what our aims are and the importance of maintaining our constitutional autonomy. We have done that throughout the Brexit negotiations; we have made it absolutely clear and, to date, on those negotiations, the UK government has presented our position, our aims and our asks to Brussels.

So do you still trust the Johnson government to do that after this ‘inappropriate’ act?

“It is not a matter of trusting one government or another. It is a matter of ensuring that, firstly, our constitutional autonomy is respected and taking appropriate action, which is what we are doing in this instance, but equally, ensuring our position and what we would like to see out of the negotiation over our future relationship is relayed to Brussels. And to date, that has been done.

“We want a goods for goods deal and a fish for fish deal, and we have been quite clear on that. Of course, we have relationships with the French at a regional and national level and you wouldn’t expect us to do anything other than relay the same messages to them about what we want out of the Brexit negotiations. 

Is this unexpected and unwanted move by the UK evidence that the Island needs to explore independence further?

“I have always been clear that we need to consider every option. The opening position in all of our negotiations is that our constitutional autonomy should be protected and should be enhanced. And I share that view with my predecessor, Sir Philip. 

“I currently cannot see that there would be benefits provided by being independent to our current relationship with the Crown, but if an Order in Council was issued arising from the PEC - and I see no reason why it needs to be nor should be - that would create a constitutional issue for the United Kingdom. But it wouldn’t be for us; we would be acting in a constitutionally appropriate and autonomous way. 

Are you worried that Channel Island waters could be sacrificed by the UK in order to get a deal with the EU through? 

“Absolutely not. Our position has been appropriately communicated to Brussels. We are right now answering questions back to them about what it is we are offering. We can be absolutely assured that those conversations are taking place in the manner we expect them to be. We have no evidence that the UK is able to sacrifice our waters in the way that some people have described. It would also be constitutionally impossible in my view.”

Have you spoken to Mrs Prentis since Tuesday?

“Yes, I have, and she said something similar to what she said in the Houses of Parliament. She knows that we are upset by it, she understands those issues, but - for some reason I cannot fathom, she still feels the need to include a PEC. 

And how important is it to fathom that reason?

“I don’t think it is. What is important is for us to continue to make our case in the strongest possible terms, and to be bellicose about it.

“Ministers have regularly made it very clear to the UK that Jersey legislation provides comprehensively for the management of our fishing opportunities and is sufficient to give effect to our international obligations.

“There is absolutely no reason to extend parts of the UK Fisheries Bill to Jersey and the inclusion of the permissive extent clause is unwarranted and completely unnecessary. The UK will not be taking control of our waters.”

Top picture credit: Ian Rolls