KING'S BENCH DIVISION
ADMINISTRATIVE COURT
2 Redcliff Street Bristol BS1 6GR |
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B e f o r e :
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The King (On the application of Glass Eels Limited t/a UK Glass Eels) |
Claimant |
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- and - |
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Secretary of State for the Environment, Food and Rural Affairs |
Defendant |
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Mr T Jones (instructed by Government Legal Department) for the Defendant
Hearing date: 17 January 2023
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Crown Copyright ©
Mr Justice Lane :
A. THE EUROPEAN EEL
B. LEGAL FRAMEWORK
" (a) the competent scientific authority has advised in writing that the capture or collection of the specimens in the wild or their export will not have a harmful effect on the conservation status of the species or on the extent of the territory occupied by the relevant population of the species;
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(d) the management authority is satisfied, following consultation with the competent scientific authority, that there are no other factors relating to the conservation of the species which militate against issuance of the export permit".
C. RELEVANT BODIES
D. THE DECISIONS
"There is a risk that, were we to permit the proposed export to China, it may be used to mask a bigger illegal trade. The concern is not that any export permit issued would be used to export more than is permitted, or that the permit may facilitate illegal activity in this country. Rather, the concern is that the permit may be used in China, to provide evidence of lawful acquisition for aquaculture which may in fact include a mixture of legally and illegally acquired eels (ie a mixture of the eels exported under the permit applied for and eels sourced illegally from elsewhere). The problem is particularly acute in the case of glass eels because of the combination of large illegal trade (especially in China), and the difficulties in estimating the likely total weight of the glass eels when they reach adult size. A glass eel may weigh 0.3g, whereas an adult eel will weigh several kilogrammes (the largest recorded is 6.6kg). There is also a substantial difference between the weight of adult males and females, which adds to the difficulties of estimating the likely total yield of adults exported as glass eels. All of these factors mean that there is considerable scope for legitimate export permits to be used in China to mask illegal trade and/or to provide a cover for illegally acquired eels to be sold on within China or re-exported.
We are therefore concerned that if the UK issues export permits for trade with countries of illegal wildlife trade concern regarding eels, such as China, this will harm the significant international enforcement efforts and the UK's credible participation in these efforts. While eel stocks remain precarious and a significant illegal trade in eels persists, we will continue to consider the risk of UK exports enabling illegal wildlife trade ("IWT") as a relevant factor when making a decision on applications for CITES export permits for European eels. We take a precautionary approach."
"More generally, however, applications for CITES export permits are assessed against the merits of the specific trade in question, and in the present case our concerns relate to the potential consequences of exports to China. Restocking in GB may be relevant to the non-detriment finding, but it would not be relevant to (and would not in any event be sufficient to offset) the risks which we have identified in relation to the proposed export."
"We note the additional information provided in your letter of 23 April, however we do not consider that these (sic) address our concerns with issuing a permit to allow export of UK glass eels to Hong Kong. European eels are a Critically Endangered species with a well-documented illegal trade, particularly in glass eels. The dominant trafficking route for this illegal trade appears to be from European source countries to China.
There is a risk that, were we to permit the proposed export to China, it may be used to mask products derived from illegal trade and/or to provide a cover for illegally acquired eels to be sold on within China or re-exported. We note your comments about reputation and track record of the proposed importer, however, we do not consider that your assertions regarding the trustworthiness of the importer can offset our concerns over the lack of robust traceability systems in China that could provide assurance over the use and end destination of any glass eels exported from the UK.
We are further concerned that if the UK issues export permits for trade with countries of illegal wildlife trade concern regarding eels, such as China, this will harm the significant international enforcement efforts and the UK's credible participation in these efforts. While eel stocks remain precarious and a significant illegal trade in eels persists, we will continue to consider the risk of UK exports enabling illegal wildlife trade ("IWT") as a relevant factor when making a decision on applications for CITES export permits for European eels. We take a precautionary approach."
E. THE GROUNDS OF CHALLENGE TO THE SECOND DECISION
F. THE PROCEEDINGS
G. DECIDING THE CLAIM
Ground 1
"No trade will be permitted in glass eels destined for aquaculture or direct human consumption to regions in which a high level of illegal trade in glass eels persists because of the risk of any legal trade from the UK being used as cover for future re-exports of products derived from illegal trade."
"I wanted to touch base with you on eels to make sure our policy thinking continues to reflect the latest enforcement/compliance risk. As such, I've set out a few questions below I've be (sic) grateful for advice on from your experience/feel for the problem. For context, we are being challenged by the industry on our position to not support trade of UK glass eels with Asian markets (so as to not mask illegal trade or allow illegally sourced eels to be laundered under legitimate UK CITES permits) and I want to make sure our position is mindful of the latest situation on the ground from an illegal trade of eels perspective".
"It is, of course, legitimate for a statutory body such as the respondents to adopt a policy designed to ensure a rational and consistent approach to the exercise of a statutory discretion in particular types of case. But it can only do so provided that the policy fairly admits of exceptions to it. In my judgment, the respondents effectually disabled themselves from considering individual cases and there has been no convincing evidence that at any material time they had an exceptions procedure worth the name. There is no indication that there was a genuine willingness to consider individual cases. On the contrary, there is every indication of rigid adherence to their policy of refusing those eligible for discretionary awards on the grounds that the respondents would be obliged to make full awards and were not prepared to do so.
The exceptions procedure was referred to by the respondents for the first time in answer to the applicant's application for judicial review. It looks as though when, for the purpose of drafting his affidavit, Mr Tyson was pressed to say how an exceptional case might have been dealt with, he gave an answer about the education secretary consulting the chairman of the relevant subcommittee. That, however, as I have already remarked, did not happen in this case. There is no indication that it ever has happened…
I am not satisfied that the respondents had such a procedure in place at the time for the most obvious of all reasons that there was no prescribed method of eliciting exceptional circumstances from applicants without which the procedure could not operate. The result is that the respondents fettered their discretion by adopting a policy from which no departure was contemplated of invariably refusing awards to applicants….".
"It would surely be idle, and most likely confusing, to require every policy statement to include a health warning in the shape of a reminder that the policy must be applied consistently with the rule against fettering discretion…, a policy may include exceptions … But the law by no means demands that a public policy should incorporate exceptions as part of itself".
Ground 1 : discussion
"49. I note that the word "policy" can mean several things. For some products, there are written policies which the APHA decision-maker will essentially read and apply when faced with a relevant application. There is no such policy in relation to glass eels (or indeed eels more generally), which means that the decision-maker will not simply read and apply the relevant policy.
50. On the other hand, it is certainly right to say that there were at the relevant time, and remain, significant concerns about issuing export permits to areas of high illegal wildlife trade, in particular in East Asia. Those concerns would always be given (and were given in this case) significant weight given the substantial illegal wildlife trade as has been summarised above."
"Eel products are legally produced and consumed in countries around the world. This legal market is relevant to a discussion of eel trafficking, because it is largely fed by aquaculture producers who may receive some of their glass eels stock from illegal sources. Unlike contraband like street drugs, there is no back-alley black market for eel meat products. Rather, similar to some other wildlife products, legitimate products can be tainted by illegitimate sources of supply."
a) Cases where the movement was for scientific, research or other non-commercial purposes;
b) Cases where the specimens would be held in separate aquaculture facilities within a demonstrably secure and reliable traceability system;
c) Cases where more information on the supply or production chain was provided to address the concerns detailed above;
d) Cases where the application was concerned with adult eels, rather than glass eels (and so the impacts of masking and traceability issues would be far lower); or
e) Cases where the eels would be shipped dead for human consumption.
Ground 2
"…you go on to say that since APHA has not made any attempt to question the good faith and trustworthiness of Ms Yu or Koltai International Ltd it must follow that it has no credible doubts about them. APHA's concern is systemic, not linked to any particular individual. As your client is aware from its knowledge of the framework in this country, preventing illegal trade requires a robust traceability system so that eels can be tracked and monitored at every stage of the chain, which may involve many individuals and many different legal entities. Having confidence in one individual is not sufficient.
Furthermore, and for the avoidance of doubt, APHA has not reached any judgment regarding Ms Yu or Koltai International Ltd. It does not need to, because its concern is more general but if the application did depend, as you suggest, on reaching a judgment about the trustworthiness of particular individuals in other jurisdictions, that would impose a remarkable burden on APHA, which would not rely simply on assertions made by an applicant".
Ground 2- discussion
Ground 3
Ground 3 – discussion
"88. We disagree. We start with nomenclature. Criticising the Judge for using the expression 'the precautionary principle', when it had not been used by the parties, misses the point and elevates form over substance. The Judge did use the language of the precautionary principle in the context of the common ground fact that the elephant population in Africa was dramatically threatened by the demand for ivory and that CITES, and other international and national measures, had failed to prevent wide scale poaching. The need for stringent action was acknowledged at the international level, and the actions taken by Parliament were directed towards that risk.
89. It is wrong to overstate Defra's case. It has never been said that the Act can make more than a contribution to the mitigation of the risk; nor is it claimed that the UK acting alone can succeed in resolving the problem; and nor has it been claimed that there is a neat, clear and direct, causal connection between the trading bans in the Act and achievements of the goal of mitigation of the risk of extinction of the African elephant. What matters is and whether there is an identified risk and there is a connection between the action taken and the risk…."
H. DECISION AND CONCLUDING REMARKS