Fishermen’s organisations lose challenge to variation of Scottish sea fishing economic link licence requirements

About this case:

• Citation:
  [2024] CSOH 27
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Ericht

Scottish Fishermen’s Organisation Ltd and Shetland Fish Producers Organisation Ltd, which supported the overall objective of the decision but disagreed on how that objective should be achieved, sought reduction of the decision on the grounds of breach of Article 1 Protocol 1 ECHR and use of a statutory power for an improper purpose.

The case was heard by Lord Ericht in the Outer House of the Court of Session. Findlay KC and Blair, advocate, appeared for the petitioners and Mure KC and Irvine, advocate, for the Scottish Ministers.

Necessity or expediency

Prior to the variation, a real economic link could be demonstrated by landing 50% of quota stocks into UK ports, having 50% of crew normally reside in the UK, or incurring 50% of operating expenditure in the UK.
From 1 January 2023, the latter two conditions became unable to form the main basis for compliance and the landings condition was to transitionally increase to 55% by 2025. Prior to the petition, the petitioners had used the crewing condition to fulfil the economic link.

Senior counsel for the petitioners submitted that, while the licensing power had been exercised for an admirable purpose, the new licence condition was ultra vires. This was because the statutory power relied on, schedule 3 paragraph 1 of the Fisheries Act 2020, had been exercised for an improper purpose.

He went on to add that the new condition was not proposed as necessary or expedient for the regulation of sea fishing or promotion of the fish processing sector, in line with the stated policy objective of the respondents, and instead pursued an economic objective. Any condition could only be imposed to the extent that it was necessary or expedient for the regulation of sea fishing.

For the respondents it was submitted that the purpose of the 2020 Act was to provide the post-EU legal framework for the UK to operate as an independent coastal state. The power was expressed not solely in terms of necessity but also expediency. Provided the decision to impose a condition was rationally necessary or expedient for the regulation of sea fishing, including where it does not relate directly to fishing, the exercise of the power was not for an improper purpose.

Construed widely

In his decision, Lord Ericht observed: “If the petitioners are correct that it is unlawful to attach to a fishing licence a condition which is for economic benefit, then that would have far-reaching consequences. It would mean not only that the new amended economic link condition was unlawful, but also that any economic link condition (including the economic link conditions currently in force in other parts of the UK) would be unlawful. The maritime equivalent of a coach and horses would be driven through current fisheries policy throughout the UK.”

He continued: “There is nothing in the wording of the statutory licensing power in Schedule 3 which disapplies the objectives of the Act. Indeed, Schedule 3 includes wording which is entirely consistent with the use of Schedule 3 to further the national economic objective. That Schedule expressly provides [in para 1(1)] for attaching conditions ‘which do not relate directly to fishing’.”

Assessing whether the power had been used for an improper purpose, Lord Ericht said: “The wording of paragraph 1 of Schedule 3, taken in isolation and without reference to the fisheries objectives, does not restrict the power to attach conditions so as to prevent the imposition of a landing condition for economic reasons. The power requires to be construed widely.”

He concluded on proportionality: “The proportionality of the impact of the cost to a vessel in the range of £198,000 to £267,528 per annum as against the likely benefit of the impugned measure to the Scottish economy in the range of £49.7 million to £210.6 million over 10 years, falls within the respondents’ margin of appreciation. The respondents were entitled to come to the view that the detriment to the petitioners’ members was outweighed by the contribution that the revised economic link condition will contribute to the achievement of the objective.”

The petition was accordingly refused.