Ministers spend at least £30k contesting judge's demand to reconsider Scottish no-trawling scheme

She took action after, in a landmark legal judgement, the Scottish Creel Fishermen’s Federation (SCFF) won a court challenge over the "right to trawl" in Scotland's inshore waters which was expected to have a marked bearing in fishing rights across the country.

The fishermen argued in a judicial review that the decision to reject a the pilot 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.

Lady Poole agreed and after admitting being "surprised" at the Scottish Government's position on her judgement she ruled: "It follows from the court’s findings and orders that a reassessment should be carried out by the respondent.

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

"It is axiomatic that the reassessment should be carried out in accordance with the requirements of administrative law.

"Those include the rules of natural justice and procedural fairness, which may in some circumstances include rights to be heard.

"If the reassessment is not carried out in accordance with the requirements of administrative law, it will be open to further challenge in the courts."

But the Scottish Government has decided to appeal her ruling.

And fishermen have now accused ministers of bogging the process down so that it will not be be able to take action on the judge's instruction prior to the May Scottish Parliament election.

Alistair ‘Bally’ Philp of the North West Inshore Fisheries Group, one of those which put forward the pilot plan in a representation to the the SNP's House of Commons leader Ian Blackford and finance secretary Kate Forbes that whatever happens the Scottish Government's Marine Scotland agency, which oversees fisheries, should come under independent scrutiny over its decision making to ensure an "impartial assessment" over the merits of the pilot plan.

He believed a successful appeal would require the government to prove Lady Poole erred in law on all counts and that it was "unlikely" to succeed.

He said: "This is probably just a political decision, in that it will bog the process down such that it won't be able to be acted upon prior to the election. I guess it makes political sense not to rock the proverbial boat just before an election, especially if its not your own money that's getting thrown overboard.

"This decision is not just a slap in the face for the fishermen who have fought for years to pilot a low impact community managed fishery in the Inner Sound, it is a setback for the marine environment itself, which by the government's own admission is deteriorating at an alarming rate."

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.

Lady Poole, one of the newest Court of Session and High Court judges ruled in the SCFF's favour saying that ministers had acted "unlawfully" and that it is now 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

The fishermen sought an legal order forcing a review of the proposals to separate mobile and static fishing in the Inner Sound after resistance from Scottish ministers, despite Lady Poole's ruling.

And Lady Poole had warned ministers that she would issue the order if the matter was not sorted out saying she was "surprised" by the ministers' position after her judgement.

At the core 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.

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.

Mobile fishing, through trawling and dredging, can often come into conflict with static methods.

Creel fishermen - who lay their pots of the seabed before returning days later to empty them - say thousands of pounds worth of gear can be lost when a fishing boat drags its nets through an area.

And 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.

In a ruling against the Scottish ministers over the pilot decision, Lady Poole 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.

Costs were awarded to the fishermen and their representatives as well as an additional fee based on the complexity and importance of the issues raised.

The case is subject to a protected expenses award made by Lord Burns and which set the cost cap for the Scottish Government at £30,000 - said to be a realistic estimate of what they will be expected to pay when costs are assessed.

Robert Younger, solicitor with Fish Legal, which is supporting the fishermen's case said: I think this case is significant because it is a real test as to whether the Scottish Government is serious about addressing the environmental crisis that we are facing.

"The pilot is significant for the future management of our inshore because it can potentially show that replacing environmentally damaging trawling with low impact creeling will actually create new jobs and wealth as well as allowing the marine environment to recover. It is a win-win.

"Unfortunately what the case has demonstrated so far is that the Scottish Government remains wedded to interests of the mobile sector. The plain fact is that until the 'freedom to trawl’ principle is replaced as the cornerstone principle of inshore fisheries management there can be no recovery of our inshore biodiversity, and healthy biodiversity is the engine and necessary condition for recovery of inshore fish stocks.

"The key point for us is not the rejection of the pilot itself, although that is important enough, it is what it reveals about the way Marine Scotland appear to work to defend the interests of the mobile sector rather than working in the interests of the people of Scotland.

"It was clear to us in our three years or so of negotiations with Marine Scotland about ‘misallocation’ of nephrop stocks that they were doing everything in their power to deflect and obfuscate rather than address what is a powerful economic argument regarding a potentially iconic Scottish product.

"Under current management nothing can change without the say so of the mobile sector. That makes a change to a more sustainable and future for our coastal communities impossible.

"This is matter of the greatest concern."

Fishing during the Covid Lockdown off the Isle of Skye

Alistair Sinclair, national co-ordinator of the SCFF said that rural economy secretary Fergus Ewing should "accept their loss with grace".

"They must admit that they have made an error of judgement in respect of the Inner Sound Pilot application. We all make mistakes," he said.

"Fishermen,their communities, indeed the public as a whole are becoming concerned that goalposts are constantly moved to suit political ambitions and agendas which are not fit for modern times. "A total rethink of inshore management must be undertaken and acted upon if the inshore waters are to provide rural communities with sources of local employment opportunities for future generations. "Currently there seems no real appetite for the change required. Whatever the current plan is, it is not fit for purpose and not working."

A Scottish Government spokesman said: “We can confirm that the Scottish Government has lodged an appeal. Given this is a live legal matter it would not be appropriate to comment further on the case.

“This case focused on the assessment of a proposal for the Inner Sound of Skye by some Creel Fishermen, and is not related to wider inshore fisheries management matters. A lot has happened since the case was lodged in May 2020.

“The Scottish Government has been very much focused on supporting the fishing industry through the impacts of Covid-19 and the EU Exit. In December 2020 we also published Scotland’s Future Fisheries Management. "This new Strategy, developed in partnership with key stakeholders, sets 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 regional Inshore Fisheries Groups.”