Inner House reverses decision ordering Scottish Ministers to reassess Skye fishery pilot proposal

Lord Carloway

About this case:

• Citation:
  [2021] CSIH 68
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Carloway

The Scottish Creel Fishermen’s Federation had been granted reduction of a consultation outcome report on the project and interlocutor ordaining the respondents to assess the project against their published guidance on inshore fisheries pilots. On appeal, the Scottish Ministers argued that the Lord Ordinary had erred in holding that the guidance applied to new proposals lodged after initial decisions on the pilots had been taken.

The appeal was heard by the Lord President, Lord Carloway, sitting with Lord Turnbull and Lord Pentland. C O’Neill QC and P Reid, advocate, appeared for the reclaimers and J Findlay QC and Upton, advocate, for the petitioners and respondents.

Continuing opposition

In May 2017, the Scottish Ministers invited parties involved in commercial fishing to submit pilot schemes to look at ways of improving fishing management. Guidance on how to submit a proposal was published by Marine Scotland, a directorate of the reclaimers. A proposal was submitted by some of the petitioners’ member organisations suggesting an extended prohibition of mobile fishing in parts of the Inner Sound for 6 months and prohibiting it entirely in specified areas.

An Outcome Report by Marine Scotland in 2018 stated that following consultation on the proposals received, the Inner Sound pilot would not be adopted. The reasons given for not taking it forward were primarily based on concerns over the impact on current fishing operations in the area and disputes over the purported economic benefits.

Further representations from the petitioners led to a consultation purely on a new proposal for the Inner Sound in 2019. A new Outcome Report in 2020 stated that in light of continuing opposition to the proposed pilot, the scheme as a whole would not be carried forward. However, it was accepted that the status quo for the area was inadequate and that a “dialogue” would be opened up with the aim of delivering improvements.

In reducing the 2020 Outcome Report, the Lord Ordinary took the view that the new proposal was still part of the Inshore Fisheries Pilots Initiative, and therefore the Scottish Ministers were still bound to follow their own guidance and had not offered any reasons as to why they did not. Counsel for the reclaimers contended that the Lord Ordinary had erred in holding that the petitioners had a legitimate expectation that the new proposal would be assessed solely against the criteria in the guidance.

It was further submitted that it was unreasonable to grant an order ordaining the respondents to assess the proposal solely against the criteria. The Lord Ordinary had failed to have regard to relevant matters bearing upon the question of remedy, notably the passage of time since the Fisheries Strategy was launched in 2015 and the material changes of policy and economic conditions that had occurred since the new proposal was submitted.

Cannot be faulted

Delivering the opinion of the court, Lord Carloway began: “The Guidance was designed to create a framework within which proposals for pilots would be considered initially. It applied to the form of proposals submitted during that exercise. The petitioners’ new proposal was submitted, considered, and rejected in the course of a separate and stand-alone decision-making process. That process of decision-making was fairly and properly conducted.”

He continued: “It is important to view the process for what it was. All that was being decided was whether certain pilots were to take place. No doubt, one or other of these pilots could have at least a temporary effect on some elements of the fishing industry, but the decision-making exercise should not be compared with one which might involve a permanent adverse effect on economic interests and certainly not with one which had the potential to interfere with a person’s human rights.”

Examining what Marine Scotland were obliged to do once the new proposal had been consulted on, he said: “The consultation process and the reasoning which followed cannot be faulted. There was no procedural unfairness. The petitioners were given an opportunity, indeed an additional chance, to put forward their proposals. Their legitimate expectation was that these proposals would be considered in the light of the consultation responses, which they duly were.”

Lord Carloway concluded: “The decision ultimately reached gave a clear and reasoned explanation for not proceeding with the pilot; viz. the strength and nature of the opposition to it. Strength of opposition may not always be a sound base for rejecting proposals which have to be objectively valued against, for example, planning policy; but this was not a comparable exercise.”

The court therefore allowed the reclaiming motion and recalled the interlocutors of the Lord Ordinary.