This blog is intended to address fisheries from the UK’s point of view in the light of the outcome of the referendum on Brexit. For the time being, and just for the sake of simplicity, it will consider the UK as a single entity rather than considering the position of the devolved administrations. Posts on this blog will not be regular and may be infrequent.

Post No.2 (first posted on 23 July 2016):

1. At the outset, it should be emphasised that the EU’s Common Fisheries Policy (CFP) will continue to apply to the UK until the point at which the UK ceases to be a member of the EU.

2. The CFP is implemented almost entirely by EU Regulations. Although the CFP is not the only EU policy implemented by such instruments, it is one where the implementing role of EU Regulations, as opposed to that of EU Directives, is particularly prominent. The EU Regulations implementing the CFP cover a range of issues. On fisheries management, these include, amongst others, the following: objectives and principles; multi-annual plans; catch limits; effort limits; technical measures; discard reduction; fishing capacity reduction; data requirements; fishing activities beyond EU waters; and enforcement.

3. The Treaty on the Functioning of the European Union, in Article 288, states that an EU Regulation is ‘directly applicable in all Member States’. The UK government has generally interpreted that phrase as meaning that the text of EU Regulations is not to be set out in our domestic statute book and, instead, any given EU Regulation becomes effective within our domestic legal framework merely by virtue of becoming part of the EU’s statute book. The latter is, put briefly, the Official Journal of the European Union.

4. The UK’s mechanism for giving domestic effect to an EU Regulation that exists on the EU’s statute book is the European Communities Act 1972 (as amended) (hereafter, ‘ECA’), specifically s.2(1). So, at the point at which the UK ceases to be a member of the EU, whereupon presumably the ECA will be repealed, there will potentially be a situation in which much of the legislation that we previously relied on to provide us with the content of a fisheries management policy becomes separated from, and non-applicable to, our domestic legal system. So how do we prepare for that moment of separation from the effect of EU Regulations?

5. As a first step, it would be sensible to consider what fisheries management legislation the UK already has on its statute book. Some such legislation does exist, in the form of various Acts of Parliament and statutory instruments. However, careful analysis will be needed to ascertain (a) the extent to which such legislation is likely to be relevant once the CFP no longer applies to the UK and (b) what gaps exist in the legislation. Some obvious gaps are likely to be ones currently covered by the EU Regulations implementing the CFP.

6. As part of the above analysis, it should be borne in mind that some of the statutory instruments comprising our fisheries management legislation use the ECA as a legal basis. For example, this is the case with some statutory instruments that deal with enforcement, in the broadest sense, of EU Regulations under the CFP. Assuming that the ECA will be repealed at the point at which the UK ceases to be a member of the EU, with potential knock-on effects on the validity of the statutory instruments using the ECA as a legal basis, those instruments would need to be identified in advance.

7. Beyond the initial stock-taking analysis referred to above, the following question arises: in the absence of the CFP applying to the UK, what should the UK’s domestic fisheries management policy look like? Answering this question, and then creating and implementing the policy, will be no easy task. Time will be needed for meaningful consultation, both formal and informal, with stakeholders. New legislation will presumably be required. Issues of devolution and relations with our neighbours, including the EU, will arise. For example, it will be necessary to work out the way in which the UK and the EU (and, where relevant, other coastal States) will seek to agree, and then allocate, the total allowable catch (TAC), or total allowable effort, for any given shared fish stock.

8. It is possible, although not certain, that the time needed to put in place our domestic fisheries management policy may exceed the relatively short time (i.e. 2 years, unless extended) that is available under Article 50 of the Treaty on European Union once the latter’s application has been triggered. What if it starts to look like a domestic policy will not be in place in time?

9. In principle, one possibility is that the UK government might chose, as a stop-gap, to maintain the domestic legal effect of some or all of the EU Regulations implementing the CFP until such time as our new fisheries management policy is in place. If so, the question arises as to how that would be done. For example, might the UK government take a ‘snapshot’ of the EU Regulations, as they existed on the EU’s statute book in the period leading up to the cessation of the UK’s membership of the EU, distill that snapshot into standards that are considered relevant to the UK and then convert that distillation into one or more statutory instruments to be applied by some enabling provision created meanwhile in our domestic legislation?

10. Again as a stop-gap, might a similar process of snapshot, distillation and conversion be undertaken in respect of those statutory instruments on our domestic statute book that use the ECA as a legal basis and whose validity would be called into question were the ECA to be repealed?

11. What becomes apparent from the above thoughts is that in the case of the CFP, where implementation is almost entirely by means of EU Regulations and hence where we as a State have become used to many provisions that apply to us being on a statute book other than our own, and where in addition several statutory instruments in our domestic legal framework for fisheries management have the ECA as a legal basis, we need to start thinking very carefully about how, in the potentially limited time available once Article 50 of the Treaty on European Union has been triggered, we will make the transition to a comprehensive domestic fisheries management policy without creating some kind of legal vacuum.

Acknowledgements: I would like to thank Hugh Mercer QC for his very helpful comments on an earlier draft of this post. Nonetheless, the thoughts expressed in this post, while informed by Hugh’s comments, are my own.