Judge rules Scots ministers acted unlawfully over blocking no-trawler scheme as fishermen win legal challenge

The fishermen argued in a judicial review that the decision to reject a proposed pilot no-trawl scheme in the Inner Sound off the Isle of Skye was unlawful because the Scottish Government only took into account opposition and did not properly assess the proposal - including examining benefits and the wider issues of inshore fisheries management.

The case was brought on the basis that the Scottish Government rejected the pilot because of the objections which were mainly from the trawler fishing communities instead of applying their own reasoned consideration.

The SCFF accused ministers of acting unlawfully by "listening to its cronies" in the industrial trawling sector in ending the scheme which it is believed could have brought greater benefits to the economy and the Scottish marine environment.

And now one of the newest Court of Session and High Court judges Lady Poole ruled in the SCFF's favour saying it is was entitled to expect the plan is "properly" reconsidered "with an open mind".

READ MORE: Fishermen mount court challenge over ministers' 'unlawful right to trawl" in Scots waters

In ruling against the Scottish ministers over the pilot decision, she said she did "not accept that it was lawful to frustrate the legitimate expectation" that it would take into account their own guidance over the wide-ranging considerations that would be taken into account in its decision. Those included the financial and enforcement implications, international and national obligations, the current quota system, and what improvements would be achieved.

She told Scottish ministers that they should not have have departed from examining those factors before a decision was made and that the results of a consultation should only have been part of the consideration.

"As a matter of law, the criteria... had to be taken into account, and were not," Lady Poole said. "No reasonable decision maker would have considered the extent of opposition assessed in the way it was.. as determinative of whether the pilot should proceed."

At the centre of the case is the Skye pilot that came amidst mounting evidence that the use of trawled fishing gear in the inshore caused widespread ecological damage including significant declines in the diversity and size of commercial fish species.

The pilot was designed to test the environmental and economic benefits of creating ‘trawl free’ potting zones.

It aimed to separate different methods of fishing into certain areas, such as creeling that uses static equipment, and fishing by trawling or dredging which does not.

There were to be other measures such as limits on the number of creel vessels and creels, quotas and minimum landing sizes of lobsters.

It was originally intended that the trial scheme pilot would be up and running by April 1, 2019 if it went ahead but the Scottish Government’s Marine Scotland directorate took until February 26, 2020 to make a decision to end the pilot.

A reasoning for the decision 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."

READ MORE: Video: Disease concern as Scots salmon farmers' produce "stomach-churning" record levels of fish deaths

Those behind the case said it would challenge the "right to trawl" that has existed since the early 1980s.

Legal papers over the case show that Scottish ministers insisted that there was "no expectation" that the criteria would be used "exclusively" to assess the pilot plan.

But the judge agreed with the fishermen that the extent of opposition was not a ground that would have encompassed a full decision-making "analysis" based on agreed criteria that provided a "structured and sensible approach to evaluation of proposals".

The judge said rejection on the basis of the extent of opposition alone was a conclusion "so unreasonable that no reasonable authority could have come to it".

Fishing during the Covid Lockdown off the Isle of Skye

She said the justification given for not proceeding because of the opposition was "open to criticism from the perspective of administrative law principles of rationality", pointing out that a "degree of opposition from those adversely affected might be expected".

Lady Poole added:"It would be stultifying to good government if any opposition to a proposed measure was a bar to its adoption."

She added that the Marine Scotland decision was "irrational" and did not act in accordance with "procedural fairness" or "legitimate expectations".

And she pointed out: "General principles of administrative law require statutory powers such as those being exercised by the Scottish Ministers in this case to be exercised lawfully, reasonably and procedurally fairly."

Before the enactment of the Inshore Fishing (Scotland) Act in 1984, there was, since 1889, a ban of bottom trawling within three miles of the coast providing “coastal fringe of largely undisturbed marine life”.

The prohibition was removed largely because trawling had led to an increased depletion of off-shore stocks and the mobile fishing sector - large trawlers operating in the area – wished to move inshore.

The SCFF said that since the ban there has been a significant and growing body of evidence showing that the decision to open up the inshore to trawling has been disastrous both environmentally and economically.

A Scottish Government spokesman said: “We are considering the court’s decision very carefully. “A lot has happened since this case, which was focused only on the assessment of the Inner Sound Pilot Proposal, and is not related to wider inshore fisheries management matters, was lodged back in May 2020.

“The Scottish Government has been focused on supporting the fishing industry through the impacts of COVID-19 and EU Exit. Last month we also published the Future Fisheries Management Strategy setting out policy initiatives for the next ten years including for inshore fisheries. We would encourage the SCFF to fully engage with this work through our inshore fisheries groups.”

READ MORE: Ministers under fire for failure to protect Firth of Clyde fishing

The fishermen have also joined environmental lawyers in attacking ministers’ “failure” to adequately protect the Firth of Clyde and support a recovery programme in an area which was once a jewel of the Scottish fishing industry.

The Scottish Creel Fishermen’s Federation (SCFF) is upset that eight years after then-Scottish Fisheries Secretary Richard Lochhead set out a “2020 Vision” statement that the Clyde could “once again be a national asset” there has been “no single practical measure” taken to improve the state of its ecosystem.

In 2012, a Clyde Ecosystem Review (CER) by Marine Scotland concluded that past fishing has had “a major ecological impact” on the firth. As many as 90 per cent of the fish were seen to be smaller than the minimum landing size while 72% of them were just one species – whiting.

It compared the Clyde to “used agricultural land in need of restoration”.