Scottish creel fishers succeed in challenging rejection of fisheries proposal by Marine Scotland 

The Scottish Creel Fishermen’s Federation challenged a decision of the Scottish Ministers exercised through Marine Scotland, a directorate within the Scottish government, to reject a proposal by some of its members in respect of regulation of fisheries around the Inner Sound of Skye. 

The SCFF’s petition for judicial review was heard in the Outer House of the Court of Session by Lady Poole. 

Localised approach 

As part of a Scottish Inshore Fisheries strategy published in 2015, Marine Scotland invited proposals from fishers to pilot alternative systems of fisheries management. Guidance on submitting a proposal expressed the intention that pilot projects would investigate a localised approach to fisheries management, where fishing interests would be involved in developing distinct local arrangements. 

A number of the petitioner’s member organisations submitted a proposal by the closing date of the scheme. Under this proposal, fishing with mobile gear would be prohibited in defined areas all year round for the durations of the pilot, and an existing prohibition on mobile fishing in parts of the Inner Sound from October to the end of March would be extended. 

Following the deadline Marine Scotland analysed proposals that it had received against the criteria in the guidance it had issued. The SCFF proposal was not taken forward. After further representations were made Marine Scotland agreed to accept a revised version of the proposal that sought to address the reasons given for its rejection.  

A new proposal was submitted by three SCFF member organisations proposing a designated trawl-only fishing area within the Inner Sound where mobile gear fishing could be carried out for six months, with other areas of the Inner Sound reserved for static gear fishing only. Marine Scotland issued a consultation document on this proposal in 2019. 

On 26 February 2020, Marine Scotland published an Outcome Report on the consultation. The report intimated a decision not to take forward the revised proposal and stated: “The responses to the consultation make it clear that there is continuing opposition to the proposed inshore fisheries pilot in the Inner Sound of Skye. While some of the management measures were well supported…. the majority of the proposed measures set out in the consultation were strongly opposed by respondents.” 

It was argued by the petitioner that the decision not to proceed with the new proposal was unlawful, as Marine Scotland failed to assess it against the criteria published in its original guidance for proposals. Furthermore, opposition to any proposal was not a criterion for acceptance published by Marine Scotland in advance. 

The respondent submitted that the 2019 consultation on the new proposal was not a reopening of the original consultation under which the first proposal was not taken forward. There was therefore no legitimate expectation that its original guidance criteria would be used exclusively to address the new proposal. 

Opposition inevitable 

In her opinion, Lady Poole said of the two Marine Scotland consultations: “The consultations carried out in 2017-18 and 2019-20 are properly seen as two separate consultations, both of which were part of the Inshore Fisheries Pilots initiative. The Guidance was a document issued at the outset of the Inshore Fisheries Pilots initiative to govern proposals submitted as part of that initiative.” 

She continued: “There is nothing in the documents before me to indicate the Guidance covered only some and not all proposals submitted under the Inshore Fisheries Pilots initiative. Nor is there anything to establish that the Guidance had been withdrawn at the time Marine Scotland agreed to accept the New Proposal for consideration, or when it put the New Proposal out for consultation.” 

On the role of the published guidance in general, she said: “Guidance is not law, but it is expected that public authorities will follow their own guidance, depart from it only where there is good reason to do so, and justify any departures. The Scottish Ministers did not argue that any good reason to depart from the Guidance existed in this case: rather it was argued that the Guidance could not be read as containing criteria against which the New Proposal should have been assessed.” 

She continued: “It was suggested that the New Proposal had itself not addressed all of the questions set out in the Guidance. In my opinion that did not absolve the Scottish Ministers from the requirement to consider the New Proposal against the criteria in the Guidance when making a decision about it.” 

Addressing the opposition to the new proposal, Lady Poole said: “It would be stultifying to good government if any opposition to a proposed measure was a bar to its adoption. In this particular case, proposals were expressly invited in the Guidance for pilots investigating the impact of separating different methods of fishing.” 

She continued: “It was an inevitable consequence of separating different methods of fishing that certain types of fishing might be excluded from particular areas during the period of the pilot. A degree of opposition from interests adversely affected might be expected. That did not absolve Marine Scotland from assessing the New Proposal against criteria it had itself published for consideration of proposals.” 

Lady Poole concluded: “As a matter of law, the criteria as material considerations had to be taken into account, and were not. The rejection of the key parts of the New Proposal on the basis of the extent of opposition alone was a conclusion so unreasonable that no reasonable authority could have come to it.” 

For these reasons, Lady Poole granted the petition and put the case out by order for discussion of the appropriate remedies.