Brexit and the future of Scottish fisheries – key legal issues in a changing regulatory landscape

Brexit will overshadow the development of fisheries legislation for the next decade. The UK Government had developed no plan in the event of a “leave” vote for June’s advisory referendum and the months since the vote have been mired in politics and process as the Government and political parties attempt to formulate a strategy both within the UK and externally. The politics is beyond the scope of this article, but the legal process is of fundamental importance and will set the parameters for any political settlement. Nothing exemplifies this better than the case of R (ex parte Miller and another) v Secretary of State for Exiting the European Union. The Government had planned on using prerogative powers to trigger article 50 of the Treaty of Lisbon in order to start the process of negotiating withdrawal from the EU, but the Supreme Court ruled that the prerogative does not extend to acts that result in a change to domestic UK law and that there was no statutory authority to trigger article 50, so enabling legislation will be required. At the same time, the Court acknowledged that arrangements for consultations between the devolved institutions and the UK institutions were of a political character and therefore the Scottish Parliament will not have a legal right to be consulted on future changes to the legal framework in the UK, let alone a veto on the UK’s withdrawal from the EU. As we roll into the 'Great Repeal Bill' process, this delicate dance between the executive, the courts, Parliament and the devolved administrations is likely to be a constant