Sandeel fishing boat operators fail to challenge UK government decision to ban sandeel fishing

About this case:

• Citation:
  [2023] CSOH 16
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Sandison

Sunbeam Fishing Ltd argued that the Secretary of State’s decision was unlawful in substance and in timing, and sought to ensure the same illegalities would not affect the UK fleet’s ability to catch sandeel in 2023.

The petition was considered by Lord Sandison. J Brown, advocate, appeared for the petitioner and Webster KC for the respondent.

Essentially futile

The petitioner had fished for sandeel using a vessel, the MFV Sunbeam, for many years in shallow water at the edge of the Dogger Bank and similar locations in the North Sea. The species, a small eel-like fish, was fished primarily for use in animal feed and fertiliser, and according to the petitioner represented about 2.7 per cent of the total catch in the North Sea up to the effective closure in 2021.

It was maintained by the petitioner that sandeel stocks were stable and capable of exploitation within guidelines issued by the intergovernmental marine science organisation dealing with the sustainable use of seas and oceans, the International Council for the Exploration of the Sea (ICES). Fishing for sandeel would be profitable for it and represent a prudent diversification from its principal operations in fishing for mackerel and herring, involving only marginal additional costs.

For the respondent it was explained that it was determined that there was a likely need for action to ensure the sufficient protection of sandeel, based on scientific evidence that the species benefitted the food web and the wider ecosystem if allowed to proliferate in the sea. The UK approach was to follow ICES advice that there should be zero catches of sandeel in various areas of the North Sea.

Counsel for the petitioner submitted that it was essentially futile to introduce a supposed conservation measure that would only prohibit about two per cent of sandeel fishing in UK waters while leaving the remaining fishery unaffected. The quotas held by the petitioner could be seen as “possession” within the meaning of Article 1 Protocol 1 ECHR, to which it was entitled to free enjoyment.

Modest but meaningful

Lord Sandison, in his decision, said of the test for interference: “The petitioner accepts, consistently with the importance of environmental protection to society as a whole and the wide margin of discretionary judgment afforded to ministers in that context, that in principle it was open to the Secretary of State to take the view on the basis of the scientific and other material before him that prohibiting sandeel fishing by UK vessels would produce environmental benefit. Rather, the difficulty lies in assessing the proportionality of the contemplated benefit with the corresponding detriment to the petitioner’s possessory interests.”

Assessing the effectiveness of any conservation aim, he said: “There is no evidence in this case that that the removal of 2,541 tonnes of sandeel from the market in consequence of the determination is liable to result in the supply of that or any other amount from source that would not otherwise have been exploited, nor that the UK would lose any moral or political credibility or influence with the EU by choosing to fish the quota which lengthy and detailed negotiations had afforded it.”

However, he continued: “On the other hand, neither do I find it possible to conclude, as the petitioner suggests, that the determination complained of should be regarded as having only symbolic value. In consequence of it being made, up to 2,541 tonnes of sandeel - amounting to many thousands of fish – will remain in the sea which might otherwise have been caught, making a contribution of some kind to the future population and to the food chain which cannot be assumed to have no practical value at all. I conclude that the Secretary of State’s determination has some, albeit limited, environmental benefit.”

Turning to whether the petitioner was disproportionately affected, Lord Sandison said: “Although the determination amounts to a total prevention of sandeel fishing, that is in consequence of a control on its use of the petitioner’s possessions rather than of an expropriation of them and, further, sandeel fishing is very far from being the sum and substance of the petitioner’s undertaking, contributing only a relatively modest amount to its catch, which largely consists of mackerel and herring unaffected by the determination complained of.”

He concluded: “The Secretary of State’s 2022 determination which is complained of may properly be regarded as a modest but meaningful contribution to valuable maritime conservation and ecological goals. Even having full regard to its modest nature, its effect on the petitioner is not disproportionate or excessive for the reasons already stated. Lack of compensation for, or equivalent mitigations of, the closure of the fishery is in those circumstances an outcome which is within the wide margin of appreciation afforded in this area to national authorities.”