COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION
(The Hon Mr Justice Scott Baker)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE JONATHAN PARKER
| The Secretary of State for Foreign and Commonwealth Affairs ||Appellant|
|- and -|
|Quark Fishing Limited||Respondent|
David Vaughan CBE QC and Randolph Fergus (instructed by Thomas Cooper Stibbard) for the Respondent
Hearing dates : 12 July 2002
Crown Copyright ©
Lord Justice Laws:
THE LEGAL FRAMEWORK
“The Commissioner shall have such powers and duties as are conferred or imposed upon him by or under this Order or any other law and such other powers and duties as Her Majesty may from time to time be pleased to assign to him, and, subject to the provisions of this Order and of any other law by which any such powers or duties are conferred or imposed, shall do and execute all things that belong to his office according to such instructions, if any, as Her Majesty may from time to time see fit to give him through a Secretary of State.”
It is under this section that the Secretary of State acted in giving the impugned direction of 7 June 2001. S.7 empowers the Commissioner to “constitute such offices for the Territories as may lawfully be constituted by Her Majesty and,… subject to such instructions as may from time to time be given to him by Her Majesty through a Secretary of State, the Commissioner may likewise -
(a) make appointments, to be held during Her Majesty’s pleasure, to any office so constituted…”
S.9 empowers the Commissioner to “make laws for the peace, order and good government of the Territories”. By s.13(1) he may deploy the power given by s.9 to “establish a Supreme Court and such other courts of justice (including a Court of Appeal) for the Territories as he may think fit…”
“In the performance of his duties under this Ordinance the Director of Fisheries shall be subject to the direction of the Commissioner…”
In the performance of their duties under this Ordinance the Director of Fisheries and every Fishery Protection Officer shall have regard to the provisions of the Convention but the question as to whether the Director of Fisheries or any Fishery Protection Officer has done so in any particular instance shall not be inquired into in any court.”
“(1) The Commissioner may by Order provide that in any of the fishing waters lying to the north of sixty degrees south of latitude specified in the Order (a ‘specified area’) fishing is prohibited unless it is authorised by a licence granted by the Director of Fisheries…
(2) Such an Order may apply to fishing boats generally in the specified area or to fishing –
(a) for a specified description of fish;
(b) by a specified method; or
(c) during a specified season of the year or other period.
(7) A licence under this section may authorise fishing either unconditionally or subject to such conditions –
(a) as the Director of Fisheries may have been directed by the Commissioner to impose;
(b) as in the opinion of the Director of Fisheries may be necessary or expedient to regulate the conduct of fishing and fishing-related operations by the licensee under authority of the licence;
(c) as to the use to which the fish may be put;
(d) prohibiting or restricting the use of any equipment which might kill or harm any aquatic bird or marine mammal to be found or likely to be found in the area to which the licence relates;
(e) as to the disposal of waste, effluvia or deleterious matter by the fishing boat to which the licence relates;
(f) otherwise as in the opinion of the Director of Fisheries may be necessary or expedient to secure the fulfilment of any obligation under or objective of the Convention,
as are contained in or specified in the licence…
(9) The licensing powers conferred by this section may be exercised so as to limit the number of fishing boats, or any class of fishing boats, engaged in fishing in any area, or fishing in any area for any description of fish in any manner which appears to the Director of Fisheries to be expedient or necessary for the regulation of fishing.
(10) The Director of Fisheries –
(a) may from time to time vary a licence granted under this section;
(b) may revoke or suspend such a licence if he considers it to be necessary for the regulation of fishing or to be appropriate having regard to the conduct of the licensee, and whether that conduct was within a specified area or elsewhere.
(11) Where the Director of Fisheries varies, revokes or suspends a licence he may, if he considers it appropriate in all the circumstances of the case, refund the whole or part of the fee paid in respect of that licence.
Other subsections, which I need not set out, impose criminal sanctions for fishing without a licence or in breach of condition (subss.(3) and (12)), and authorise the charging of a fee for licences (subs.(4)).
“(1) The function of the Commission shall be to give effect to the objective and principles set out in Article II of this Convention [viz the conservation of Antarctic marine living resources]. To this end, it shall:
(f) formulate, adopt and revise conservation measures on the basis of the best scientific evidence available…
(2) The conservation measures referred to in paragraph 1(f) above include the following:
(a) the designation of the quantity of any species which may be harvested in the area to which this Convention applies;
(b) the designation of regions and sub-regions…;
(c) the designation of the quantity which may be harvested from the populations of regions and sub-regions;
(d) the designation of protected species;
(f) the designation of open and closed seasons for harvesting;
(i) the taking of such other conservation measures as the Commission considers necessary for the fulfilment of the objective of this Convention, including measures concerning the effects of harvesting and associated activities on components of the marine ecosystem other than the harvested populations.”
“Each Contracting Party shall take appropriate measures within its competence to ensure compliance with the provisions of this Convention and with conservation measures adopted by the Commission to which the Party is bound in accordance with Article IX of this Convention.”
Member States possessing exclusive economic or maritime zones within the CCAMLR area are able to enforce the measures within their zones also in relation to foreign flagged vessels. This jurisdiction is enjoyed by the UK in relation to the Maritime Zone extending 200 miles from the shores of SGSSI, as defined by the Ordinance.
(1) As They Were Known to Quark
|Year||TAC( tonnes)||Licences Granted||Average per Vessel ( tonnes)|
|1997||5000||13 (2 UK)||384|
|1998||5300||10 (2 UK)||330|
|1999||3500||11 (3 UK)||318|
|2000||5300||14 (4 UK)||379|
The Jacqueline was in each of these seasons one of the UK licensees. We also have a document showing the nationality of each of the licensees for each of these seasons, but it is unnecessary to set it out.
“The vessel was in full compliance with this Conservation Measure. A Bird Scaring Streamer is deployed whenever shooting lines. From the vessel’s logbook all setting of lines has been undertaken during the hours of darkness. Discharge of offal takes place on the opposite side of the vessel to the hauling operations, very few seabirds were seen near the fishing line being hauled.”
I should notice also that some emphasis is placed by Quark on checks or inspections which were carried out upon the Jacqueline at King Edward Point at the start of each fishing season, and on these occasions no complaint was made about her equipment. But these checks were executed not on behalf of CCAMLR or, directly at least, with a view to monitoring compliance with CCAMLR conservation measures; they were done by SGSSI Government Marine Officers, and (as Dr Richardson puts it) “cover[ed] matters including safety and verifying whether equipment complies with the relevant licence conditions”. However the licence conditions routinely included a stipulation that the CCAMLR measures be complied with.
“The fishery has been relatively stable in the past few years with vessels, such as yours returning on an annual basis… The strong competition for licences should provide an incentive for all operators to employ good practices and full compliance with CCAMLR Conservation Measures.”
“Following her purchase from GSGSSI in 1996 and refurbishment the Jacqueline and Quark Fishing Ltd have worked every year in the South Georgia fishery and have completed four successful longlining seasons; we remain committed long term to this fishery…”
“You said to me that the reason that the Jacqueline was not offered a license [sic] this season was only because she did not compare well to other vessels in respect of compliance with CCAMLR conservation measures; you were however not able to provide any evidence of this, or indicate how this conclusion may have been reached, other than to speculate that the CCAMLR observer from last season may have delivered a negative report. We have the draft of the CCAMLR observer’s report which you are welcome to review; it contains no criticisms whatsoever of our compliance with conservation measures. We are not aware that any previous report contained any negative comment either…”
“The policy of GSGSSI in relation to the licensing of vessels to fish in the Maritime Zone implemented by the Director of Fisheries has not been published as such, although it may, in part, be divined from the Ordinance.
This year Mr Jarvis [the Director of Fisheries], as your clients are I think aware, originally had in mind issuing nine licences, four of which would be issued to British-flagged vessels, of which the Jacqueline would have been one and consulted the Foreign and Commonwealth Office and the Commissioner on that proposal.
As a result of those consultations, Mr Jarvis took the view that to allocate four of the nine potential licences for the longline fishery to UK-flagged vessels would alienate other CCAMLR Members whose vessels had previously fished in South Georgia waters. He accordingly decided to increase to seven the number of licences granted to foreign-flagged vessels and consequently to reduce to two the number of licences issued to British flagged vessels. He decided to licence [sic] the two British-flagged vessels which had the better record of compliance with CCAMLR conservation measures. This led to the Jacqueline not being granted a licence in respect of the forthcoming season.”
“WHEREAS… I… advised the Commissioner of SGSSI… that if the Director were minded to grant 10 licences as aforesaid [sc. to fish for toothfish by longlining]:
(a) The number of licences granted to UK or UK Overseas Territories-flagged vessels should be 2 out of 10;
(b) The selection of the 2 UK or UK Overseas Territories-flagged vessels from amongst the applicants for licences should be made on the basis of the vessels’ comparative record of compliance with CCAMLR Conservation Measures; and
(c) In the light of the information contained in the Nineteenth CCAMLR Report including, in particular, the information contained in the Report of the CCAMLR Working Group on Fish Stock Assessment [viz. the Report appended to the 2000 Report, to which I have referred] at Tables 54 and 55 thereof, the fishing vessels Argos Georgia and Argos Helena had the best two records of compliance with the relevant CCAMLR Conservation Measures of UK or UK Overseas Territories-flagged vessels applying for longline toothfish fishing licences”.
Then the executive words of the direction are:
“… I hereby instruct the Commissioner, in the exercise of his powers under section 4(2) of the 2000 Ordinance, to direct the Director not to grant a licence to fish for toothfish during the Fishing Season to any UK or UK Overseas-Territories flagged vessels other than the Argos Georgia and the Argos Helena.”
The direction, of course, overcame the legal flaw in the earlier decision which had led the Chief Justice of SGSSI to grant relief. But Quark had other points to make including (as I shall show) arguments going to the direction and not only the general decision-making process. These proceedings for judicial review were lodged in the Administrative Court on 11 July 2001. I shall refer to them as “the London proceedings”.
(2) The Decision-Making Process: Only Later Known to Quark
“This enables us to offer 9 licences for 400 tonnes and 1 licence for 300 tonnes…
Below is my recommended list of successful applicants for longlining licences. As usual the decision is based on a number of factors:
- loyalty to the fishery;
- as wide a spread of flag states as the number of licences will allow;
- also taking into account local politics;
- information from ISOFISH [a freelance website giving information about rogue vessels in CCAMLR areas] and adherence to CCAMLR Conservation Measures.
The vessels are…”
And the recommendation included all four British registered vessels.
“44. … On behalf of the FCO, I… emphasised that an important consideration of the SGSSI in allocating the licences should be ensuring as equitable a distribution of licences amongst CCAMLR flag states as possible whilst taking account of particular vessels’ track record in terms of compliance with CCAMLR Conservation Measures and also loyalty to the fishery.
45. The principal result of my suggestion was that the allocation of licences to UK flagged vessels would be reduced from 4 to 2… I further suggested that, in allocating licences between vessels of a particular flag state, preference should be given to those with the best records of compliance with CCAMLR…
46. The FCO had been involved in the preparation of the 2000 Report and was aware of its contents which included statistics for comparative compliance with CCAMLR Conservation Measures by different fishing vessels… As can be seen from tables 54 and 55 of the 2000 Report [he means the Working Group Report which was appended to the 2000 Report], of the UK Overseas Territories flagged vessels, two vessels flagged in the Falklands, the Jacqueline and the Lyn, had the worst records of compliance with Conservation Measure 29/XVI. The practical result of my suggestion would be, therefore, that the Jacqueline and the Lyn would not get Toothfish fishing licences for the SGSSI Zone for the 2001 season.”
I shall have to turn to the Working Group Report, and in particular Table 55, which has loomed large in the issues joined between the parties; but first there is more to say about the course of the decision-making process. Dr Richardson goes on to state (paragraph 50) that following his advice and recommendations, the Director of Fisheries raised the matter with the Commissioner for SGSSI, who in turn took the matter up with Mr White, and Mr White reiterated his (Dr Richardson’s) advice to the Commissioner. These observations amounted to an implicit reference to the letters of 28 February and 9 March 2001 which as I have said were produced (along with Dr Richardson’s reply to the Director of Fisheries dated 16 February 2001) by Mr Parker on the last day of the hearing in this court. These then were the events which, on Dr Richardson’s evidence in the London proceedings, led to the allocation of licences on 14 March 2001 and the exclusion of the Jacqueline and the Lyn from the allocation.
“… Dr Richardson was concerned that distribution amongst different flag states was not equitable or desirable given the nature of the UK’s dealings with states within CCAMLR. He advised that only two vessels flagged in UK Overseas Territories should be granted licences. Furthermore, amongst the UK vessels, those with the best records of compliance with CCAMLR over recent years should be licensed. He informed me that, on the balance of information provided by CCAMLR, this would mean that the Jacqueline, which had a significantly poorer record of compliance with CCAMLR than the Argos Helena or the Argos Georgia, should not be granted a licence.”
“It was… suggested by me, on behalf of the FCO, to the Director of Fisheries that his proposed allocation should be amended. Within the constraint of the size of the TAC and, therefore, the limitation on licence numbers, I suggested that the primary consideration of the SGSSI in allocating licences should be ensuring as equitable a distribution of licences amongst CCAMLR flag states as possible, but giving some preference to UK Overseas Territory-flagged vessels. The principal result of this suggestion was that the allocation of licences to UK flagged vessels should be reduced from 4 to 2 (the same number as had been allocated during previous years). Two of the licences which the Director of Fisheries had proposed to grant to UK flagged vessels would, therefore, be reallocated to vessels sailing under the flags of other CCAMLR states. The two licences allocated to UK Overseas Territory flagged vessels should be allocated to those vessels which had the best compliance records. In suggesting this I was aware of the findings of the CCAMLR Scientific Committee for 2000 which included statistics for comparative compliance with CCAMLR by different fishing vessels…”
I should note that there had not been only two British-registered vessels granted licences “during previous years”. Four licences had been allocated to UK-flagged vessels in the previous year (2000), and three in 1999.
“In relation to UK flagged vessels… although there was a general preference for UK and UK Overseas Territories flagged vessels and for loyalty shown to the fishery by the various vessels, the following considerations were crucial to the nature of the allocation of licences for the 2001 fishing season and, in particular, the refusal of a licence to the applicant’s vessel Jacqueline:
(i) The size of the TAC for toothfish in Sub-area 48.3;
(ii) The equitable distribution of licences amongst various flagged states – as advised by the FCO; and
(iii) The level of compliance with CCAMLR Conservation Measures – as advised by the FCO relying upon CCAMLR material.”
“12. This is a difficult matter for it entails a degree of subjectivity regarding vessels’ previous performance and potential black-listing. Sources of information are CCAMLR’s own database, information from other Parties, and (if used judiciously) information from the NGO organisation ‘Isofish’.
13. As you are aware, the obligations of Conservation Measure 29 were amended at CCAMLR XIX to make it obligatory not to discharge offal on the same side of a vessel as line hauling.
14. Para 9.12 of the Commission’s report calls on Parties not to license vessels which cannot comply with this requirement. Some of those vessels would need physical reconfiguration before they could be considered fit to be licensed. If I recall the Isla Camila and Jacqueline? were vessels which previously failed to meet this requirement. Checks should be made to ensure that all prospective vessels in the fishery this year can now meet this requirement.
15. As to compliance levels generally, we would have to point out that, unfortunately, the Lyn and Jacqueline have some of the poorest track records of vessels operating in the CCAMLR area. Unless the performance of those vessels has greatly increased in the intervening months, then we do not believe we would be enhancing the UK’s standing in the international community by preferentially licensing such vessels which are known to have a poor compliance record, whilst excluding vessels with an excellent performance level.”
Dr Richardson then sets out “our conclusions”, one of which was:
“[T]he UK’s involvement in the fishery should not be disproportionate in either vessel numbers or quota allocation.”
And in the result he recommends an “initial allocation” which included only two licences for British-registered vessels. He makes no observations on the question whether the Jacqueline (or the Lyn) should be licensed or not.
“The political issue for us is Mike’s [sc. Dr Richardson] proposition that two Falkand-flagged vessels should be removed from the fishery. Mike Summers and Tony Blake are the leading Falkland Islanders associated with these vessels, the “Jacqueline” and the “Lyn”. It may be that, from a pure fisheries angle, that makes sense. Politically, the realisation that no Falkland-flagged vessel was allowed to fish for toothfish would provoke a hostile reaction…”
And he asks that the Director’s recommendations (in the letter of 8 February) be reconsidered.
“Our view remains that to allocate four of the nine potential licences for the longline fishery to UK OT [ie, Overseas Territories]-flagged vessels would be seen by others as disproportionate. A view we could not contest. This would be the case especially as within the current Toothfish pot fishery we have already allocated 50% of the licences and two thirds of the (albeit limited) quota on a tonnage basis to UK OT-flagged vessels belonging to, and operated by, a Falkland Islands-based company, Argos.
Reducing licences for UK OT-flagged vessels down from four to two in the longline fishery leaves us with the invidious task of deciding which vessels to licence [sic]. But as with licence allocations more generally, we need to be as objective as possible. So certain factors must come into play, and here the past performance of vessels in the fishery is a crucial factor. Looking across the potential candidates it is clear that the Argos vessels have a relatively high compliance record with CCAMLR regulations. The Lyn and Jacqueline in contrast are unfortunately almost at the bottom of the list. Last year CCAMLR did a ranking (copy provided to Government House earlier in the season) based on compliance with relevant Conservation Measures, in particular data reporting, and vessels’ ability to comply with seabird mitigating measures. For ease of reference I attach as an example the ranking for the latter. From that you will see that the Lyn and Jacqueline are not good performers. And of course what is also relevant here is that failure to comply with CCAMLR Measures means in effect failure to comply with South Georgia law since the provisions of those Measures are set as conditions on a vessel’s licence. So I am afraid, given a need to choose which should receive licences, the Lyn and the Jacqueline are in the bottom half of the draw.
We remain in favour of an equitable split amongst CCAMLR Parties’ access to the SGSSI fishery. For wider political reasons that is in our interest. We also wish to see a level of preferential access given to UK-OT flagged vessels. But that does need controlling if the wider objective is to be met. We cannot be seen to be preferentially licensing vessels whose compliance record with responsible regulatory measures is low…”
“Following the decision of the Supreme Court SGSSI on 1 June 2001, the Secretary of State decided that he should issue instructions to the Commissioner in order to ensure that the pattern of licence allocation which had been put in place prior to the judgment was reinstated...” (my emphasis)
And paragraph 62:
“… the factors which had been considered relevant to the initial licence allocation decision were those which it [sic] considered relevant even after the initial decision had been quashed. In addition… it was a major concern of the Secretary of State that a reconsideration of the decision not to allocate quota to the Jacqueline could affect the position of other vessels. If the reconsideration resulted in an allocation of fishing licences which differed from the original allocation this would inevitable require a reduction in quotas lawfully allocated to vessels by the Director of Fisheries in the initial allocation.”
I will postpone for the present any consideration of the impact of this evidence.
(3) Table 55
“7.49 In Subarea 48.3 the total estimated seabird by-catch in 2000 was 10% of that in 1999 and 4% of that in 1997. By-catch rates in 2000 were 0.05% of those in 1997. These changes, achieved in large part by restricting fishing to winter months, but also by improved compliance with Conservation Measure 29/XVI, particularly night setting, have culminated in reducing seabird by-catch in the regulated fishery to negligible levels.
7.52 Compliance with the streamer-line design was poor and only 33% of the streamer lines deployed complied fully with the specifications in Conservation Measure 29/XVI (Table 54). The length of most of the streamer lines was less than 150 m and this continues to be the main reason for non-compliance… [O]nly 25% of the lines used in Subarea 48.3… were greater than 150 m in length… Some vessels have persistently poor compliance with this element of the conservation measure (eg. [then 10 vessels are named, including the Jacqueline, the Lyn, and the Argos Helena]). Compliance with other elements such as the attached height of the line and the number and spacing of streamers per line remains high (85-100%). Nineteen observers indicated that spare streamer-line material was present on board.
7.54 In Subarea 48.3 four vessels (Faro de Hercules, Isla Sofia, Isla Camila and Jacqueline) are still operating with offal discharge on the same side as the haul, in contravention of Conservation Measure 29/XVI.
7.55 Compliance with night setting has improved in Subarea 48.3 from 80% last season to 92% this season…
7.60 Details of compliance with streamer line, offal discharge and night-setting requirements of Conservation Measure 29/XVI are summarised on a vessel-specific basis in Table 55…”
Table 54 deals with compliance rates for what is described as the 1999/2000 season with the minimum specifications for streamer lines set out in what was then Conservation Measure 29/XVI. Table 55 is headed in part: “Summary of compliance with Conservation Measure 29/XVI regarding night setting, correct configuration and use of streamer lines and offal discharge practices in the Convention Area, from 1998 to 2000. The Argos Georgia, Argos Helena, Jacqueline and Lyn are among the 25 vessels listed in the Table (some of the vessels listed fished in areas other than 48.3). There are three headings: “Night Setting”, “Streamer Line” and “Offal Discharge”. Under each of these there are three sub-columns, for 1998, 1999 and 2000 respectively. Against the name of each vessel there is entered “Y” or “N” (“Yes” or “No”) to indicate compliance or non-compliance with the conservation measure standards for each heading in each of the three years; save that where in a given year a vessel did not fish, a dash (“-”) is entered. Here are the entries for the four UK- registered vessels:
|Night Setting||Streamer Line||Offal Discharge||1998||1999||2000||1998||1999||2000||1998||1999||2000||Argos Georgia||-||-||Y||-||-||N||-||-||Y||Argos Helena||Y||Y||Y||Y||N||N||Y||Y||Y||Jacqueline||Y||Y||N||N||N||N||N||N||N||Lyn||-||N||Y||-||N||N||Y||Y||Y|
Thus the Argos Georgia had fished only for the year 2000. The italicised “N” against the Argos Georgia’s name in relation to the Streamer Line standard for 2000 reflects this statement in the heading to the Table: “Vessels in their first year in the fishery that failed to comply with a conservation measure are indicated in italics.” I note that Mr Summers’ evidence in the London proceedings (paragraph 16 of his statement) is that the Argos Georgia originally had a pot fishing licence for 2000, but over two months caught only 17 tonnes of her 600 tonnes allocation; after which a successful application was made to transfer the remaining 583 tonnes to longline. So she only spent half the 2000 season longlining for toothfish.
THE JUDGMENT OF SCOTT BAKER J
“69. The grant of a licence to a vessel for Toothfishing in SGSSI waters is an extremely valuable commodity… In my judgment there is no reason why applicants for such a licence should be left in any doubt about the criteria upon which they will be granted. The process should be transparent and the criteria published at the time applications are invited. It is not satisfactory to say, as the Attorney General did in his letter of 10 April 2001, that the policy has not been published as such, although it may in part perhaps be divined from the Ordinance. If the Secretary of State is minded to give a direction of the kind that he gave in the present case, and in my judgment he was fully entitled to take into account the wider international picture, then I can see no reason why it should not, in the ordinary course of events, be given at the same time as applications are invited for licences so that all applicants can know the basis on which the decision will be made.
70. It seems to me clear that what actually happened was that the Secretary of State’s advice/direction only bit on United Kingdom flagged vessels. The applications for licences for all the other vessels were decided by the Director in accordance with the criteria set out in his letter to Dr Richardson of 8 February 2001. But there is a further problem: whether the yardstick required by Dr Richardson (CCAMLR compliance) was accurately and fairly applied.”
“Only one streamer line (80m) was used during 68 settings observed (72 sets) and was of own design. The vessel had two more lines for replacement use. It always seemed effective in the settings with presence of seabirds.”
So it was submitted for Quark, and the judge accepted, that there was a failure as to one detail only of the streamer line requirement, and the failure was “of a technical nature in the light of their other bird prevention measures”. Scott Baker J acknowledged that the Jacqueline was shown in Table 55 as having failed the streamer line requirement in 1998 and 1999, as well as 2000, and observed that “[t]he reason again appears to the length of the streamer line. No effort appears to have been made, either on the inspections or any other time, to draw these or any other CCAMLR compliance deficiencies to the attention of [Quark]”.
“My conclusion is that Table 55, on which Dr Richardson relied, does not give an accurate or fair picture of the Jacqueline’s CCAMLR compliance record. This was damaging to [Quark] because it was relied on to determine the Jacqueline’s CCAMLR compliance record in relation to other United Kingdom flagged vessels without [Quark] having the opportunity to point out the deficiencies. Mr Parker submits that the CCAMLR report and with it Table 55 are documents in the public domain that were available to [Quark] from the autumn of 2000. The evidence leaves me in some doubt about the availability and certainly the accessibility of these documents. More significantly, however, it was never made clear to [Quark] or, indeed, to any other licence applicants, that the observers’ reports would be interpreted so as to produce a record of comparable compliance between vessels, or that it would be used in determining future licence applications.”
LOYALTY TO THE FISHERY
THE SUBSTANTIVE DECISIONS
(1) The First Decision: 14 March 2001
“… if he [sc. a Minister of the Crown] does not give any reason for his decision it may be, if circumstances warrant it, that a court may be at liberty to come to the conclusion that he had no good reason for reaching that conclusion and order a prerogative writ to issue accordingly.”
So also, as it seems to me, where the Minister has given conflicting, or apparently conflicting, reasons.
(2) The Need for Substantive Reconsideration
“Much of what has been placed before me and much of what Mr Vaughan and Mr Parker have submitted during the course of this hearing has related to the accuracy or (as the former would have it) the inaccuracy of the data used by the FCO in producing a ranking of vessels in such a way that the MV Jacqueline was excluded. It will be apparent from the above, however, that my decision is not in any dependent upon that. I would however add this. On reading the papers, I was somewhat puzzled by the relating of compliance data to the vessel alone. This seemed to me only part of the picture. Ships are inanimate, and once a licensing authority is satisfied that a vessel meet [sic] the appropriate physical criteria (eg. safety measures, navigation and identification equipment) it is less the vessel and more the manner of operation which would be of concern to the licensing authority. It would, for example, be possible for a vessel which had an excellent compliance record later to become subject to the control of a master, fishing master, charterer, or owner who had a poor record of compliance in those waters or elsewhere. Similarly, a vessel which had a poor compliance record in earlier years might now be under the control of those with an impeccable record. Counsel were not able to help me with this.Similarly, it is apparent that when producing a ranking order based upon the figures actually used by the FCO, where data was not available relating to a particular vessel, the assumption was made that this equated to compliance on the part of that vessel. Whilst to do otherwise might have been inequitable in so far as those other vessels were concerned, it may well have had the effect of distorting the position in which the MV Jacqueline was placed in the overall ranking.”
(3) The Second Decision: the Direction of 7 June 2001
IN THE RESULT
Lord Justice Jonathan Parker:
Lord Justice Aldous: