Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Barlow & Ors -v- The Minister for Agriculture & Ors [2014] IEHC 471 (28 October 2014)
URL: http://www.bailii.org/ie/cases/IEHC/2014/H471.html
Cite as: [2014] IEHC 471
[New search] [Help]
Judgment Title: Barlow & Ors -v- The Minister for Agriculture & Ors Neutral Citation: [2014] IEHC 471 High Court Record Number: 2012 11047 P Date of Delivery: 28/10/2014 Court: High Court Composition of Court: Judgment by: Birmingham J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 471 THE HIGH COURT JUDICIAL REVIEW Record No. 2012/11047 P BETWEEN PAUL BARLOW, WOODSTOWN BAY SHELLFISH LIMITED, MICHAEL CROWLEY, RIVERBANK MUSSELS LIMITED, GERARD KELLY, FRESCO SEAFOODS LIMITED, TARDRUM FISHERIES LIMITED, ALEX McCARTHY AND HALCOME MERCHANTS (IRELAND) LIMITED TRADING AS ALEX McCARTHY SHELLFISH PLAINTIFFS AND
THE MINISTER FOR AGRICULTURE, FOOD AND THE MARINE, THE REGISTRAR GENERAL OF FISHING BOATS, IRELAND AND THE ATTORNEY GENERAL DEFENDANTS JUDGMENT of Mr. Justice Birmingham delivered the 28th day of October 2014 1. This case concerns mussel seed fishing in Irish waters (i.e. waters within twelve nautical miles of the Irish coast). The corporate plaintiffs are the owners of Irish licensed sea fishing vessels, which are purpose built mussel seed vessels, and all the plaintiffs have a history of involvement in the bottom grown mussel industry. Each of the individual plaintiffs with the exception of the third named plaintiff who is the general manager and company secretary of the fourth named plaintiff as well as being the skipper of the Hibernia fishing vessel owned by the fourth named defendant, is a director of one of the corporate plaintiffs. 2. Central to the current proceedings is that the plaintiffs contend that mussel seed fishing in Irish waters by Northern Ireland vessels, as permitted by the Irish authorities, is harming the industry and causing them loss and damage. The essential case made by the plaintiffs is that the defendants, in permitting fishing by Northern Irish boats, are acting unlawfully and indeed unconstitutionally. There are a number of aspects to the plaintiffs’ claim, but the core contention is that Northern Irish vessels cannot be permitted to fish in Irish waters unless provisions are made for this by law and that there is no law making provision for this. The plaintiffs say that the requirement which they say exists for an express legal authorisation for Northern Ireland fishing stems from the express provisions of the Constitution, from the constitutional order of the State and from statute. 3. Before turning to the legal issues, it is necessary to provide a little information about the mussel industry and to say something about the history of that industry. It appears that prior to the 1980s only a very limited amount of mussel fishing took place in Ireland involving a small number of families with a tradition of involvement in the mussel industry. In the 1990s bottom mussel fishing, which is what this case is about, as distinct from the rope mussel fishing industry on the west coast was largely centred in Wexford and in Cromane in Kerry. 4. In the late 1990s and the early years of this century, there were significant developments in relation to the bottom mussel seed industry and indeed the wider aquaculture industry. In that context, the National Development Plan 2000 to 2006 placed an emphasis on the potential for development of the aquaculture sector and financial assistance referred to as Financial Investment for Fisheries Guidance (FIFG) was made available. It is of significance that the plaintiffs received FIFG to support them in purchasing purpose built mussel vessels at a cost of between €3.4 and €3.795 million per vessel. The plaintiffs place emphasis on the fact that those seeking FIFG support were required to submit detailed business and aquaculture plans. These plans were based on mussel seed allocation requirements. However, the plaintiffs say that there has been a marked disparity between the allocations that were contemplated during the grant approval process and the actual allocations that they have received. The mussel industry involves wild mussel seed being dredged from natural mussel seed beds by specially designed vessels and then the second stage sees the seed transferred from the area where it was dredged to an aquaculture site where they are relayed and allowed mature. Typically the aquaculture sites where maturing takes place are situated in sheltered waters. 5. Maturing takes twelve to eighteen months. Mussel seed is a naturally occurring substance. Annual production levels are not constant, but levels vary appreciably. However, the trend in recent years has been very clear. In 2005, by way of illustration, Ireland produced 29,500 tons of bottom mussels, the National Development Plan envisaged that this would rise to 44,000 tons by 2015. However, in 2010, the figure had dropped to just over 13,000 tons and the figure for 2013, was down to 2,500 tons. To put those figures in some context, it should be noted that during the years 2000 to 2006, 20,000 was seen as a somewhat disappointing year. 6. The very poor return in 2013 is a cause of particular concern. Summer sea temperatures last year were several degrees above average and that should have produced a bumper yield, but the actual outcome was indicative of a fishery in collapse. The plaintiffs’ case is that while some peaks and troughs are to be expected, that a decline of the magnitude that has occurred cannot be explained by natural occurring variations and environmental conditions, but is attributable to serious mismanagement of the fishery and specifically to over fishing. In terms of over fishing the plaintiffs point to an increase in the number of vessels fishing and specifically point out that in 2000, there were two or three Northern Irish registered mussel vessels active in Irish territorial waters, and none prior to that, at which stage there was no established mussel industry in Northern Ireland. Whereas by 2003, there were eleven Northern Ireland vessels fishing. There has been a drop off from that figure since, partly reflecting the decline in mussel seed stock, but there has been significant fishing by a number of Northern Ireland vessels. Apart from an increase in the number of vessels that are fishing, which is of itself a cause of major concern, the plaintiffs also say that Northern vessels have a tendency to engage in a particularly aggressive and unsympathetic form of fishing. 7. In this century, the mussel industry has been managed on an all island basis, known as “joint management” which refers to the joint administration of the mussel seed industry by the Department of Agriculture, Food and the Marine, and the Northern Ireland Department of Agriculture and Rural Development (DARD). The title of the Irish Department involved has changed on a number of occasions over the years and for simplicity I will simply refer to it as the Department of the Marine. Part of the joint management initiative saw responsibility for the assessment of allocations of mussel seed being undertaken for a period by a non statutory cross border body known as the Seed Mussel Allocation Committee, (SMAC), with allocations being made on an all island basis. The legality of SMAC and the way in which it managed the mussel industry is at issue in related proceedings referred to as Barlow 1, which proceedings have been placed on hold pending the determination of the present proceedings referred to as Barlow 2. 8. I should say a little about the relationship between these sets of proceedings and about the so called Barlow 1 proceedings. Proceedings bearing Record No. 2006/2687P were commenced by the plaintiffs in 2006. The stage was reached where those proceedings were actually opened in October, 2012, but immediately following the opening there was an application to amend substantially the plaintiffs’ pleadings. An application was refused leading to those proceedings adjourning and to the initiation of the present proceedings. In Barlow 1 the plaintiffs raised a number of complaints about how the mussel seed sector was administered. One of the complaints was that the Minister for the Marine had breached the terms of a Voisinage agreement (or neighbourhood agreement). I will be dealing in much greater detail presently with the terms of the Voisinage agreement and what significance is to be attached to it, but at this stage, suffice to say that the agreement makes provision for Irish fishing vessels, that is to say, vessels from this State and Northern Irish vessels to enjoy the right to fish on a reciprocal basis in each others’ waters. However in the present proceedings the plaintiffs are seeking:
(ii) Seeking if necessary a declaration that the exchange of letters (those that are alleged to constitute the Voisinage agreement) do not constitute an arrangement within the meaning of s. 8(1)(a)(iii) of the Sea Fisheries and Maritime Jurisdiction Act 2006. (iii) Seeking if necessary a declaration that s. 8 of the 2006 Act is unconstitutional having regard to Article 15.2 and Article 29.6 - this claim has not been pressed. (iv) If, which is denied, an existing arrangement was memorialised by the exchange of letters, a declaration that at all material times, the existing arrangement no longer existed. (v) If, which is denied, an existing arrangement was memorialised by the exchange of letters, a declaration that this was not covered or within the terms of the London Fisheries Convention [1966]. (vi) If, which is denied, the defendants are entitled to rely upon an agreement and/or arrangement and/or a memorandum of understanding as a legal basis for mussel fishing by Northern Ireland fishing boats in territorial waters, a declaration that the same is justiciable and that the plaintiffs are entitled to rely on the legal effects of same. (vii) A declaration that the defendants acted contrary to Article 15 of the Constitution in adopting S.I. 311/2006 - The Mussel Seed (Fishing) Regulations 2006. However, in a situation where the defendants have accepted that the Statutory Instrument does not go further than recognising the existence of the Voisinage arrangement this relief has not been pressed. 10. The respective cases of the parties may be summarised as follows:- The plaintiffs contend:
(ii) Mussel seed is a natural resource and as such under Article 10.3 of the Constitution, any management or alienation of it by the State must be prescribed by law. (iii) Permitting fishing of mussel seed amounts to a permanent alienation of the resource and also constitutes management of it within the meaning of Article 10.3 of the Constitution. (iv) So far as Irish vessels are concerned, the 2006 Act regulates by law through a detailed system of authorisation and allocations. However, there is no equivalent provision made in law for Northern Ireland mussel fishing vessels. (v) The Constitution requires that all executive action be governed by the rule of law so that the executive cannot take action without reference to a particular statutory provision or common law rule that justifies their action. (vi) This is particularly important when executive action affects rights, interests or legitimate expectations or creates entitlements. (vii) Section 10 of the 2006 Act expressly criminalises fishing by foreign sea fishing boats unless authorised by law and thus the fishing in Irish waters by Northern Ireland boats is unlawful and criminal. (viii) Section 8 of the 2006 Act cannot be regarded as providing the authority required by law as it only permits entry into Irish waters and does not permit fishing. (ix) Section 8 of the 2006 Act only has application when legal instruments are in force. The exchange of letters at issue in the present proceedings cannot be said to be "in force" as they are not legally binding. In the premises, say the plaintiffs, there is no statute or common law rule that justifies the actions of the defendants. (x) The plaintiffs say that insofar as the defendants justify mussel seed fishing by Northern Ireland boats by reference to the exchange of letters or Voisinage agreement that the exchange of letters does not provide a justification as - it is not binding in international law - it is not binding in domestic law - it is not subject to Oireachtas control - it has never been incorporated into domestic law - it is neither public nor precise. (xi) In the alternative, if contrary to their primary submission, the exchange of letters permits some fishing by non Irish fishing boats, it does not permit the mussel fishing actually being carried out since such fishing is not as a matter of fact covered by the terms of the exchange. It is said that this is so because there is no reciprocity as Irish boats are prohibited by British law from fishing for mussel seeds in Northern Ireland waters, because Northern Ireland registered mussel vessels not owned by fishermen permanently resident in the six counties are permitted to fish in Irish waters, and because Northern Ireland registered mussel vessels greater than 75 feet in length are permitted to fish in Irish waters. (xii) Northern Ireland registered mussel vessels were not habitually fishing in Irish territorial waters at the time of the exchange of letters [the relevance of a number of these assertions will become apparent when the terms of the letters exchanged are considered]. (xiii) The plaintiffs say that they have a legitimate expectation that fishing would be carried out in accordance with the terms of the letters exchanged and that the reliance placed upon the exchange to justify mussel seed fishing as practised by Northern Ireland vessels is in breach of that legitimate expectation. [However, by agreement consideration of the legitimate expectation issue has been deferred until Barlow 1 and does not require consideration at this stage.]
(ii) The Voisinage arrangement is a memorandum of understanding of a technical and administrative character not requiring either to be laid before the Dáil or to be approved by the Dáil, i.e. coming within the first category referred to by Finlay C.J. in the State (Gilliland) v. Governor of Mountjoy [1987] I.R. 201, the case involving the extradition treaty between Ireland and the United States. (iii) The Voisinage arrangement is recognised under the Common Fisheries Policy as an arrangement under existing neighbourhood relations between Member States. As such it is directly effective and confers rights and/or privileges on Northern Ireland fishermen independently of the provisions of domestic law. (iv) Fishing by Northern Ireland mussel seed fishermen in the territorial waters of Ireland is not unlawful under s. 10 of the Sea Fisheries and Maritime Jurisdiction Act 2006, as properly construed. (v) Statutory Instrument 311/2006 does not confer, though it does recognise, rights to fish under the Voisinage arrangement. Therefore, there is no question of the Statutory Instrument being either ultra vires or unconstitutional. (vi) The plaintiffs are not entitled to a declaration to the effect that the existing arrangement no longer existed at all material times. (vii) Further or in the alternative, the plaintiffs are not entitled to seek to enforce the terms of the Voisinage arrangement and are not entitled to and never had any legitimate expectation in relation to the observance of same and have no entitlement to damages.
Incidentally, the position as regards our own boats is that in accordance with the licensing of sea fishing vessels Regulations, 1960 (S.I. No. 4 of 1960) no vessel exceeding seventy five feet in length may be used for sea fishing, except under and in accordance with a licence issued under s. 9 of the Sea Fisheries Act 1952, as amended by the Sea Fisheries (Amendment) Act 1959. The present practice is to require vessels exceeding 90ft in length or 400 H.P. to refrain from fishing within our exclusive fishery limits and this will apply to the inner six mile zone of the extended limits. The position will be, therefore, that your vessels up to 75ft in length overall may fish within our exclusive fishery limits subject only to the usual regulations which would effect our own boats also. If there were any question of vessels exceeding that length, fishing within the inner six mile zone of our limits, it would be necessary for them to hold a permit to do so from the Minister for Agriculture and Fisheries under the Maritime Jurisdiction Act 1959(section 8) as amended by the Fisheries (Amendment) Act 1962 (section 34).”
Dear Mr. O'Sullivan, Thank you very much for your letter to Bateman of the 13th September. I am sorry it has taken us so long to reply. I acknowledge your undertaking to the effect that Northern Ireland owned and operated fishing vessels will continued to be allowed to fish within your new limits and we assume that these limits include your territorial waters. We for our part confirm that we consider ourselves bound by the terms of para. 6 of the note of the 25th August, 1964 from the Commonwealth Relations Office to your Government headed “London Fisheries Convention 1964, Extension of British Fisheries Limits”.
The Constitutional Argument.
2 All land and all mines, minerals and waters which belonged to Saorstát Éireann immediately before the coming into operation of this Constitution belong to the State to the same extent as they then belonged to Saorstát Éireann. 3 Provision may be made by law for the management of the property which belongs to the State by virtue of this Article and for the control of the alienation, whether temporary or permanent, of that property. 4 Provision may also be made by law for the management of land, mines, minerals and waters acquired by the State after the coming into operation of this Constitution and for the control of the alienation, whether temporary or permanent, of the land, mines, minerals and waters so acquired.” 18. Historically the view has always been that wild beasts, fowl and fish were “nullius in bonis” (no one’s property). Again from an historical perspective there was an individual right of fishing, see Longfield on the Fishery Laws of Ireland. At p. 3 it observes:-
22. Murdoch in his Dictionary of Irish Law, defines alienation as the power of an owner or tenant in property to transfer his interest, while Javitt’s definition is of transferring of property to another. In this case there is no transferring of property, all that is happening is that fishing activity is permitted, as it happens on a reciprocal basis. Whether the permission to fish results in seed being taken depends on whether seed is located, whether the fishery is open, whether the individual vessel is within the limits of its authorisation and other factors. The plaintiffs have asserted that the traditional notion of nullius in bonis must be reconsidered in the context of the assertion contained in Article 10.1 of the Constitution. But there is no hint of such a radical departure from the long established legal order to be found in Article 10. It is very hard to believe that the Irish people in adopting a Constitution could ever have contemplated that they were setting aside long established legal principles dating back from many centuries and in the process surrendering rights that their ancestors had enjoyed over the centuries. The Constitutional Order 24. However, these statements of high constitutional principles must be seen in context. It is hard to justify references to the exercise of an unfettered discretion in permitting reciprocal fishing, when at the same time there is absolutely no cap whatever on the number of Irish boats that could be authorised to fish for mussel seed. Again, the context in which the State took the decisions that it did in 1965, is of considerable significance. Those decisions were taken in the context of the State considering how relations with its nearest neighbour should be ordered. The authorities are clear that a particular degree of restraint is required from the courts in entering onto foreign policy issues. In Horgan v. Ireland [2003] 2 IR 468, the Shannon stopover case, Kearns J. (as he then was) having considered the provisions of Articles 5, 6, 15, 28 and 29 of the Constitution stressed that the Government and the Government alone can exercise the executive power of Government. In doing so, he referred to certain observations by Walsh J. at p. 782 of Crotty v. An Taoiseach [1987] IR 713, where he had said:-
27. In my view, the requirements for restraint and circumspection on the part of the courts in the area of foreign affairs is heightened when what is at issue is relations with Britain; East/West and North/South relations. There is no authority, or indeed any justification for the proposition that at the level of policy, the Government cannot conduct relations through neighbourhood agreements or arrangements. 28. The defendants have asserted strongly that the issues which the plaintiffs seek to litigate are just not justiciable. There is much force in the argument. However, in a situation where the plaintiffs have emphasised that their challenge is essentially a procedural one and that they are not seeking to review the merits, the wisdom and appropriateness of the decisions in relation to Northern Irish boats, it would not be appropriate to proceed to dismiss the proceedings in limine. However, we must not lose sight to the fact that the form and style in which relations are conducted - whether by way of formal treaty, signing ceremonies in circumstances of pomp and ceremony or at ministerial level or at official level - itself involves important exercises in judgment, which are properly taken by Government. A very considerable margin of appreciation should be afforded to the Government. 29. The Constitution itself envisages three different types of international agreements,
(ii) An international agreement involving a charge upon public funds where the State will not be bound unless the terms of the agreement have been approved by the Dáil. (iii) An agreement falling into neither of the first two categories which must be laid before the Dáil, but need not be approved by the Dáil. (See the State (Gilliland) v. Governor of Mountjoy [1987] I.R. 201). The Statutory Challenge.
(2) A person who contravenes subsection (1) commits an offence.”
(a) a purpose or purposes recognised by -
(ii) international law, or (iii) any convention, treaty or arrangement for the time being in force between the State and the country, to which the boat belongs, (2) If a foreign sea-fishing boat enters within the exclusive fishery limits in contravention of subs. (1) the master of the boat commits an offence.”
(a) a purpose or purposes recognised by -
(ii) International law, or (iii) any convention, treaty or arrangement for the time being in force between the State and the country, to which the boat belongs, (b) any other lawful purpose or purposes, then -
(II) any regulations made under subs. (2) and for the time being in force shall be duly observed. (3) If there has been in relation to a foreign sea-fishing boat which has lawfully entered within the exclusive fishery limits or in relation to the persons on board that boat, a contravention (whether by commission or omission) of subs. (1), the master of the boat commits an offence.” 34. On a plain and literal interpretation of s. 8(1)(a)(iii), the Voisinage arrangement under discussion is an arrangement for the time being in force between the State and the country to which the boats belong. But the plaintiffs suggest that the word should be interpreted as meaning a legally enforceable instrument, pointing out that the surrounding words Convention and Treaty would be enforceable and they suggest that it is reasonable to assume that the three instruments referred to must all be enforceable. Further support, they say, can be found from the phrase “in force”. They point out that the Oxford English Dictionary refers to an archaic use of the term “arrangement” as a settlement of a dispute or claim. With all due respect to that argument, the word “arrangement” is a very ordinary straightforward one in daily use. As the word is used every day, it would encompass the Voisinage agreement or Voisinage arrangement of 1964/65. In that regard, it is noteworthy that the word “arrangement” appears not just in s. 8 of the 2006 Act, but that it also features in Article 5(2) of Regulation 1380/2013, which is in these terms:-
36. I have already referred to the fact that the O'Sullivan letters of the 13th September, 1965, had referred to continuing the present arrangement, while the 25th August, 1964, note had referred to leaving unchanged an arrangement then in place. It is striking that both sides independently used the word “arrangements” to describe the pre-existing situation. In truth, it seems to me that the 1964/65 documentation is in the nature of a memo of understanding agreeing to leave unchanged pre-existing arrangements. Alternative Arguments Reciprocity 39. What all of these arguments have in common is that perhaps understandably, they focus on the current situation of Irish mussel fishing vessels. However, the arrangement in place is not species specific. The arrangement is a general one and covers all fish and is at that level that the issue of reciprocity requires to be considered. The fact that a particular species may be found in Irish waters and not in Northern Irish waters or vice versa is really neither here nor there. Equally, the fact that a particular fishery may be open or closed in respect of a particular species of fish at a particular time does not effect the fundamental situation which is that fishing in the waters around the island is permitted on a reciprocal basis. Permanent Residence Issue 41. I have already commented on the fact that the language used by Mr. O'Sullivan and by Mr. Elliott diverges and that this would cause difficulty if what was involved was interpreting a contract. Indeed, if there had been an attempt to negotiate a binding detailed legal instrument it is very likely that the divergence would have been addressed. The argument though, ignores the fact that the structure of the fishing industry in Europe and indeed in Ireland has evolved in the half century since the exchange of letters occurred. It may well have been the case that in 1964 boats were owned and operated by individuals and that it was realistic to think in terms of permanently resident individual fishermen. However, almost 50 years on, where vessels are larger and more sophisticated, corporate ownership is now the norm as is illustrated by the fact that the corporate plaintiffs are each the owners of a vessel. It seems to me that the arrangement entered into is robust enough and flexible enough to deal with the structures of an industry which like other industries can be expected to evolve over time. Vessels over 75ft The Habitual Fishing Requirement
45. In summary then, I conclude that the fishing by Northern Ireland vessels is authorised pursuant to the terms of the Voisinage agreement. In conclusion I have to express some surprise that arrangements which have been in place for almost half a century are now being challenged and that the challenge comes at a time when relations between Britain and Ireland have never been closer and when north-south relations have never been better. I have spoken about the arrangements going back almost half a century, but I note that Clive Symmons writing on “The Sea Fishing Regime of the Irish Sea” (1989) 4 International Journal of Estuarine and Coastal law dates the arrangements from 1959. I am not entirely clear what occurrence that Mr. Symmons is referring to in choosing 1959, but it may be that it is a reference to the consideration of the issue by the Government to coincide with the coming into force of the Maritime Jurisdiction Act 1959. The memorandum brought to Government on the issue has been discovered. The memo details extensive fishing by what was described in the language of the time as six county fishermen in the Dunmore East fishery and the memo took the view that there was no compelling reason for altering the existing position in regard to six county fishermen within Irish limits. The decision taken by Government was to maintain what was described as the existing informal attitude. This offers further evidence that the all Ireland dimension to fishing is long established and at this stage deeply entrenched. I have already commented that I find it strange that the suggestion of reversing the long standing cooperation that has existed in relation to fishing comes at a time when Anglo Irish relations and North South relations have never been closer, the suggestion is made though, however, in my view the all island dimension is entrenched to the extent that it is inconceivable, having regard to the doctrine of separation of powers, that a court should now set aside an arrangement so well established. Change, if it is to come, is for the executive and/or the legislature. Accordingly, the plaintiffs’ claim fails.
|