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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> THE SCOTTISH CREEL FISHERMAN'S FEDERATION AGAINST THE SCOTTISH MINISTERS [2021] ScotCS CSOH_1 (08 January 2021)
URL: http://www.bailii.org/scot/cases/ScotCS/2021/2021_CSOH_1.html
Cite as: 2021 GWD 2-19, [2021] CSOH 1, 2021 SLT 161, [2021] ScotCS CSOH_1
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OUTER HOUSE, COURT OF SESSION
[2021] CSOH 1
P414/20
OPINION OF LADY POOLE
In the cause
THE SCOTTISH CREEL FISHERMEN’S FEDERATION
against
THE SCOTTISH MINISTERS
Petitioner
Respondent
Pursuer: Upton; Gillespie MacAndrew
Defender: Reid; Scottish Government Legal Directorate
8 January 2021
Introduction
[1] The petitioner, the Scottish Creel Fishermen’s Federation (“SCFF”), challenges a
decision of the Scottish Ministers affecting fisheries in the Inner Sound of Skye (the “Inner
Sound”). The Scottish Ministers exercise powers of management of inshore sea fisheries
through Marine Scotland, a directorate within the Scottish Government. On 26 February
2020, Marine Scotland published a document entitled “Inshore Fisheries Report: Inner
Sound of Skye Consultation Outcome Report” (the “2020 Outcome Report”). The 2020
Outcome Report concerned a proposal for an inshore fisheries pilot scheme (the “New
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2
Proposal”). The 2020 Outcome Report intimated the decision of Marine Scotland not to take
forward the New Proposal in its entirety. SCFF seeks to overturn that decision.
Factual background
[2] In 2015 Marine Scotland published a Scottish Inshore Fisheries strategy. Among
other things, the strategy objectives included improving the evidence basis for inshore
fisheries and the participation of fishers in policy making. In accordance with this strategy,
Marine Scotland set up an Inshore Fisheries Pilots initiative. On 25 May 2017, Marine
Scotland announced that it was inviting proposals from fishers on sites to pilot alternative
systems of fisheries management. It issued a document headed up “Marine Scotland –
Inshore Fisheries Pilots – Proposal Form – Guidance” (the “Guidance”). The Guidance
expressed the intention that pilot projects would investigate a localised approach to fisheries
management, where fishing interests would be involved in developing distinct local
arrangements. Also to be investigated in the pilots was “the impact of separating different
methods of fishing, such as creeling (eg static gear and mobile gear) within specified areas”.
Mobile gear fishing refers, for example, to fishing by trawling or dredging. Static gear
fishing includes creeling. The Guidance contained the following passage in a section headed
“Notes on Proposals”:
“Proposals will be considered on the basis of:
●
How consistent is it with the Inshore Fisheries Strategy 2015, in
particular the focus on:
o
Improving the existing evidence base
o
Improving governance
o
Integrating with wider marine management
●
The clarity of the objectives – does the proposal clearly identify issues
and the means of addressing them?
●
What improvements will be achieved and consideration of how
improvements will be monitored.
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3
●
The proposal being industry lead and developed by those involved in
commercial fishing in the area.
●
The practicality of the proposal and how achievable it is, taking into
account:
1. International and national obligations
2. The current quota system
3. Control mechanisms (Legislation and Licensing)
4. Financial implications
5. Enforcement implications”
After setting out these 5 criteria, the Guidance gave additional information. It mentioned
data collection and the need to fill in a form so that Marine Scotland could evaluate each
proposal on a case-by-case basis. It stated that future consultation may be necessary
depending on the impact and extent of proposed measures. The Guidance set out 19 specific
questions for proposers of pilots to address. The closing date for proposals was
30 September 2017.
[3] A proposal was submitted by some of SCFF’s member organisations (the “Original
Proposal”), by the closing date. The Original Proposal suggested extending an existing
prohibition of mobile fishing in parts of the Inner Sound for six months of the year from
October to the end of March. Under the Original Proposal, fishing with mobile gear would
be prohibited all year round in defined areas, for the duration of the pilot. The Original
Proposal was put out for consultation together with other proposals. In a document entitled
“Consultation on Proposed Sites to Host Inshore Fisheries Pilots 2017 Outcome Report”
issued in June 2018 (the “2018 Outcome Report”), Marine Scotland analysed proposals it
had received against the criteria in the Guidance set out in the previous paragraph. Marine
Scotland’s views on each proposal in the light of the criteria were then provided. Marine
Scotland decided to take forward some proposals and not others. The Original Proposal
relating to the Inner Sound was not taken forward. Reasons were given in a section of the
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2018 Outcome Report headed up “Conclusion”. These included: the effect on viability of the
mobile fishing industry; the impact of displacement of fishing vessels both in terms of health
and safety and increasing fishing in other areas; and questions about monitoring of the
proposal.
[4] After further representations were made, Marine Scotland agreed to accept a revised
proposal which sought to address the reasons given for the rejection of the Original
Proposal. The New Proposal was submitted by three of SCFF’s member associations. The
New Proposal was different from the Original Proposal. In summary, it was proposed that
there would be a designated trawl only fishing area within the Inner Sound where mobile
gear fishing could be carried out for 6 months of the year. There would be other areas of the
Inner Sound from which mobile gear fishing would be excluded, and static gear fishing only
would be permitted. (By implication, in some other areas of the Inner Sound, particularly
parts further north, both mobile and static fishing would be permitted). There would be
other measures such as limits on the number of creel vessels and creels, quotas, minimum
landing sizes of nephrops, and the establishment of an Inner Sound Advisory Group made
up of representatives of those who fished in the Inner Sound area.
[5] In January 2019, Marine Scotland issued a consultation document on the New
Proposal entitled “Inshore Fisheries Pilot: Inner Sound of Skye – A Consultation” (the “2019
Consultation”). It invited consultation responses by 11 April 2019. The 2019 Consultation
commenced with a background and introduction section. It narrated the history, starting
from the launch of the Inshore Fisheries Pilots initiative in 2017 described above, then
detailing the proposals received in response in 2017, and the analysis of those proposals by
Marine Scotland. In a section headed 2018 developments, Marine Scotland stated that it had
“agreed to revisit the original proposal to establish if there were any unique learning
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opportunities to be explored around testing local fisheries management measures associated
with the Nephrops fishery in the Inner Sound”. The 2019 Consultation contained a
summary of the New Proposal, and a list of 9 consultation questions. The 2019 Consultation
did not say that the Guidance issued by Marine Scotland no longer applied. An email
invitation announcing the 2019 Consultation was sent on behalf of the Scottish Government
on 17 January 2019. It referred to the results of the 2018 Outcome Report and “a revised
proposal” which “has the potential to offer some unique learning opportunities and to help
inform our future fisheries strategy”, and encouraged recipients to respond to the
consultation.
[6] On 26 February 2020, almost exactly a year after the closing date for consultation
responses, Marine Scotland published the 2020 Outcome Report. After again placing the
document in the context of the Inshore Fisheries Pilots initiative, and referring back to the
2017 Consultation, it said “Marine Scotland agreed to revisit the proposal to establish if there
were any unique learning opportunities to be explored. A revised proposal was then
developed by local fishing associations that sought to address the issues highlighted”. The
2020 Outcome Report stated that it presented a summary of the consultation responses, and
the conclusion and next steps the Scottish Government proposed to take forward. The next
three pages summarised consultation responses on questions. A conclusion followed which
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”. The 2020 Outcome Report
went on to identify four strands of work that would be taken forward to deliver
improvements, including improving monitoring, management, knowledge base and
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communication, and mentioned establishing a management advisory group. The 2020
Outcome Report neither directly addressed the criteria listed in the Guidance, nor said that
Marine Scotland had decided to depart from the Guidance. In a statement to the Scottish
Parliament on 26 February 2020, the Cabinet Secretary referred to the Inshore Fisheries Pilots
initiative, and announced that he was establishing the Inner Sound local fisheries
management advisory group mentioned in the 2020 Outcome Report, to open up dialogue.
The arguments of the parties
[7] SCFF argues that the decision not to proceed with the New Proposal was unlawful.
There are in essence three complaints. First, Marine Scotland should have assessed the New
Proposal against the criteria published in the Guidance. Second, if it was the case that the
criteria had been replaced by the reference to “unique learning opportunities” in the 2019
Consultation, Marine Scotland had also failed to assess the New Proposal against that
criterion. Third, the proposal had been assessed against a criterion of the opposition to it,
which was not a criterion published by Marine Scotland in advance. These complaints are
expressed in different ways: failures to take into account relevant considerations and taking
into account irrelevant considerations, breaching a legitimate expectation that the New
Proposal would be assessed against published criteria, acting unfairly, inconsistently and
unreasonably, and failing to give adequate reasons for the decision about the New Proposal.
[8] The Scottish Ministers argue in summary that the 2019 Consultation was not a
reopening of the 2017 Consultation, but was a new consultation. There was no legitimate
expectation that criteria in the Guidance would be used exclusively to assess the New
Proposal. The criteria were just to assess what would go forward for consultation. Nor was
there any legitimate expectation that opposition would not be taken into account, and
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opposition might be seen as part of some of the criteria. There was compliance with the
minimum standards of a lawful consultation, and the extent of any expectation must be that
responses to a consultation would be taken into account. The Scottish Ministers were
obliged to have regard to responses to consultation. The purpose of the process was to
inform future strategy. The 2020 Outcome Report explained some aspects of the New
Proposal that would be taken forward, and proposed an Inner Sound Management
Advisory Group. The reasons for the conclusion reached in the 2020 Outcome Report were
clear when that document was read in full and in context. Even if any of the challenges are
well-founded, remedies should still be refused, because the 2020 Outcome Report was not
the final word on fisheries management in the Inner Sound of Skye, and becau se it was now
some time after 2017 when pilot proposals had initially been invited.
Governing law
[9] The law under which the Scottish Ministers were exercising powers to regulate
fishing in Scottish inshore waters at the relevant times is not in dispute. Section 1 of the
Inshore Fishing (Scotland) Act 1984 confers powers on the Scottish Ministers to make orders
regulating fishing for sea fish in Scottish inshore waters. Orders may prohibit all or some
fishing, fishing by a specified meth od or description of equipment, within specified areas.
Orders may specify the period during which a prohibition is to apply, and other matters. It
is a criminal offence not to comply with such orders (section 4). The Sea Fish (Conservation)
Act 1967 and the Sea Fisheries Act 1968 contain provisions empowering the Scottish
Ministers to regulate fishing and operate a licensing system for sea fishing. These further
statutes contain provisions relevant to enforcement, such as the creation of offences and sea-
fishery officers. There are a number of orders made under these various statutory powers,
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such as the Sea Fish Licensing Order 1992/2633 (which provides that it is an offence to fish
without a relevant licence) and the Inshore Fishing (Prohibition of Fishing and Fishing
Methods) (Scotland) Order 2015 (which contains certain prohibitions relating to the Inner
Sound). The Fisheries Act 2020 will amend this statutory framework in various respects, but
was not in force at the relevant times.
[10] The Scottish Ministers are given important powers under this legislative framework.
The Scottish Ministers have an element of discretion in the exercise of the general power to
make orders regulating sea fishing within Scottish inshore waters in section 1 of the Inshore
Fishing (Scotland) Act 1984. Nevertheless, the law imposes requirements on the Scottish
Ministers in relation to the exercise of their powers. There may be a duty to keep the
question of exercise of powers under review (R v Secretary of State for the Home Department, ex
parte Fire Brigades Union [1995] UKHL 3). Further, where a discretionary power is being
exercised, that discretion has limits (Padfield v Minister of Agriculture, Fisheries and Food [1968]
AC 997). 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.
Decision
[11] All of the grounds of challenge turned on the issue of whether the decision intimated
in the 2020 Outcome Report complied with the requirements of administrative law. The
question at the heart of this case was whether Marine Scotland should have assessed the
New Proposal against the criteria in the Guidance set out in paragraph [2] above. I have
come to the conclusion that Marine Scotland should have done so, for the following reasons.
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[12] The 2020 Outcome Report was part of the Inshore Fisheries Pilots initiative (2019
Consultation page 1, 2020 Outcome Report page 1, and the announcement by the Cabinet
Secretary in the Scottish Parliament on 23 February 2020). The consultations carried out in
2017-18 and 2019-20 are properly seen as two separate consultations, both of which were
part of the Inshore Fisheries Pilots initiative. The Guidance was a document issued at the
outset of the Inshore Fisheries Pilots initiative to govern proposals submitted as part of that
initiative. There is nothing in the documents before me to indicate the Guidance covered
only some and not all proposals submitted under the Inshore Fisheries Pilots initiative. Nor
is there anything to establish that the Guidance had been withdrawn at the time Marine
Scotland agreed to accept the New Proposal for consideration, or when it put the New
Proposal out for consultation (Devon County Council v Secretary of State for Communities and
Local Government [2010] EWHC 1456 paragraphs 75-101). The Guidance is fairly understood
as the guidance document for all proposals submitted under the Inshore Fisheries Pilots
initiative, including the New Proposal. Guidance is not law, but it is expected that public
authorities will follow their own guidance, depart from it only where there is good reason to
do so, and justify any departures. The Scottish Ministers did not argue that any good reason
to depart from the Guidance existed in this case: rather it was argued that the Guidance
could not be read as containing criteria against which the New Proposal should have been
assessed. It was suggested that the New Proposal had itself not addressed all of the
questions set out in the Guidance. In my opinion that did not absolve the Scottish Ministers
from the requirement to consider the New Proposal against the criteria in the Guidance
when making a decision about it. Marine Scotland chose to accept the New Proposal, and
did not request it be modified to answer questions more fully. It chose to put the New
Proposal out for public consultation, and elicit responses. The principles of administrative
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law invoked by SCFF in this case are about controls on the ex ercise of power by those
holding it. When exercising their statutory powers and making a decision about the New
Proposal, the Scottish Ministers (acting through Marine Scotland) were bound to act
lawfully, fairly and reasonably and in accordance with criteria they themselves had
published.
[13] Parties accepted that the question of construction of the Guidance, and any
requirements it might impose on Marine Scotland, was a matter for the court. Construction
of the Guidance is an objective exercise in which the starting point is to find the natural and
ordinary meaning of the words used, viewed in their particular context and in the light of
common sense (Lambeth London Borough Council v Secretary of State for Housing, Communities
and Local Government 2019 UKSC 33 at paragraphs 15-19). The plain, natural and common
sense meaning of the Guidance is that proposals submitted under the Inshore Fisheries
Pilots initiative would be considered on the basis of the list of criteria set out in paragraph
[2] above. The questions which followed the criteria in the Guidance were to try to guide
proposals so that they addressed the criteria. The criteria were set out in the context of
invitations to proposers to assist Marine Scotland investigate a localised approach to
fisheries management, and the impact of separating different types of fishing (such as static
and mobile gear). The criteria in the Guidance provided a structured and sensible approach
to evaluation of proposals. The criteria included factors such as achievability in the light of
international and national obligations, thereby including considerations of compliance with
the law. The criteria were capable of being applied whether or not there was further
consultation, which was left as an option in the Guidance. If there was consultation, then
consultation responses would be taken into account, but as part of the exercise of
considering the criteria and deciding whether a pilot should proceed (as was done in the
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2018 Outcome Report). I reject the suggestion that the criteria in the Guidance were only
there to decide which proposals should go forward for consultation, rather than which
proposals should result in pilots going forward. That is not what the Guidance says, when
fairly read. The criteria against which Marine Scotland said proposals would be considered
were the criteria in the Guidance. The reference in the 2019 Consultation document to
“unique learning opportunities” does not change this. Both consultations proceeded on the
common basis of the Guidance issued at the start of the Inshore Fisheries Pilots initiative.
[14] The 2020 Outcome Report makes no reference to the criteria in the Guidance, and
makes no express attempt to assess the New Proposal against them. This is in marked
contrast to the approach taken in the 2018 Outcome Report to all other proposals put out for
consultation under the Inshore Fisheries Pilots initiative. The 2018 Outcome Report
summarised “feedback to questions posed in the consultation”, and provided Marine
Scotland’s response to each proposal, “taking into account consistency with the criteria set
out in the Guidance, consultation feedback and wider considerations” (page 4 and the rest of
the document). The 2020 Outcome Report stated that it gave “a summary of the
consultation responses, highlighting the main issues that emerged, and presents the
conclusion and next steps the Scottish Government proposes to take forward” (page 1). The
impression from the 2020 Outcome Report is that the criteria in the Guidance were simply
overlooked by Marine Scotland. The consistency of the New Proposal with all of those
criteria was not analysed anywhere in the 2020 Outcome Report. The conclusion of the 2020
Outcome report was that there was continuing opposition to the proposed inshor e fisheries
pilot in the Inner Sound of Skye. It was evident from what was said that the key parts of the
New Proposal restricting types of fishing would not be taken forward. It is true that Marine
Scotland said they would take steps to improve monitoring, management, knowledge base,
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and set up the Inner Sound management advisory group suggested in the New Proposal.
However, those matters were ancillary to the main thrust of the New Proposal, which was
for separation of certain fishing areas, something expressly invited in page 1 of the Guidance
as part of the Inshore Fisheries Pilots initiative. The decision of Marine Scotland on these
key parts of the New Proposal was that they would not happen.
[15] I accept the submission of SCFF that the reason Marine Scotland gave in the 2020
Outcome Report for not proceeding with the key parts of the New Proposal is fairly read as
the extent of opposition. The three pages preceding the conclusion section of the 2020
Outcome Report set out a summary of consultation responses, including whether there was
majority agreement or disagreement to particular questions, and some of the criticisms of
respondents. But that is all those pages do. They do not go on to give Marine Scotland’s
own views on the criteria in the light of everything before it, although the powers to regulate
and license sea fishing was in the hands of the Scottish Ministers and not consult ation
respondents. The only indication of Marine Scotland’s views was in the conclusion section
of the 2020 Outcome Report. (I reject the suggestion that reasons given in the 2018 Outcome
Report about the Original Proposal can be used to justify rejecting the key parts of the New
Proposal; that was a report on different proposals). Nothing more is said on the substance
of the New Proposal. The justification given for not proceeding with the New Proposal, of
the extent of opposition, is open to criticism from the perspective of administrative law
principles of rationality. It would be stultifying to good government if any opposition to a
proposed measure was a bar to its adoption. In this particular case, proposals were
expressly invited in the Guidance for pilots investigating the impact of separating different
methods of fishing. It was an inevitable consequence of separating different methods of
fishing that certain types of fishing might be excluded from particular areas during the
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period of the pilot. A degree of opposition from interests adversely affected might be
expected. That did not absolve Marine Scotland from assessing the New Proposal against
criteria it had itself published for consideration of proposals. In assessing proposals against
the criteria, Marine Scotland was obliged to take into account consultation responses,
including those which opposed the New Proposal. But that was not simply to decide
whether they were broadly in favour or against aspects of the New Proposal. Consultation
responses should have been considered for what bearing on the published criteria they
might have. It was suggested in submission (not in the 2020 Outcome Report) that the fact
of opposition from some quarters might bear on some of the criteria, such as enforcement,
financial considerations, or possibly monitoring. Exactly how was not clearly articulated.
The governing legislation already makes provision for offences and sea-fishery officers by
way of enforcement. If what was meant was that monitoring, or reporting on fishers
breaching any regulations, required the co-operation of local fisheries, then I accept SCFF’s
point that more analysis was required of consultation responses rather than the simple
analysis given in the 2020 Outcome Report of which individuals and organisations agreed or
disagreed with particular questions posed. It is evident from the list o f respondents to the
consultation that they came from all over Scotland and not only the Inner Sound. There was
no attempt in the 2020 Outcome Report to analyse support or otherwise from respondents
who actually fished in the Inner Sound. The extent of o pposition was not in any event a
ground which could have encompassed analysis of all of the published criteria.
[16] The Scottish Ministers sought (at paragraph 45 of an affidavit of Mr Watson of
Marine Scotland lodged with the court) to justify the refusal to proceed with key parts of the
New Proposal on grounds not published in the 2020 Outcome Report. The justification
profferred still does not directly address the criteria, but gives some additional reasons for
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not proceeding with the pilot. I accept the submission of SCFF, made under reference to De
Smith, Judicial Review 8th ed at paragraph 7-116, that it is well established the courts should
exercise caution before accepting reasons for a decision which were not articulated at the
time of the decision, but were only expressed later. The court should treat reasons provided
after the commencement of proceedings especially carefully. By this stage, rather than
approaching a matter with an open mind before any decision has been taken, a different
exercise is being undertaken, of trying to justify a decision which is being impugned in an
action. I do not accept that Mr Watson’s explanation is any substitute for an open minded
consideration of the New Proposal in the light of the published criteria.
[17] I turn now to the individual grounds of challenge, in the light of the findings I have
made. As often happens in administrative law, the grounds of challenge overlapped to
some extent. There was no real disagreement between the parties as to the content of the
relevant principles. The dispute was how they should be applied in this case. In my
opinion, Marine Scotland erred in the following ways.
[18] Marine Scotland did not act in accordance with procedural fairness. As was said by
paragraph 68:
“Where a public authority has issued a promise or adopted a practice which
represents how it proposes to act in a given area, the law will require the promise of
practice to be honoured unless there is good reason not to do so. What is the
principle behind this proposition? It is not far to seek. It is said to be grounded in
fairness, and no doubt in general terms that is so. I would prefer to express it rather
more broadly as a requirement of good administration, by which public bodies ought
to deal straightforwardly and consistently with the public… The principle that good
administration requires public authorities to be held to their promises would be
undermined if the law did not insist that any failure or refusal to comply is
objectively justified as a proportionate measure in the circumstances”.
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Marine Scotland issued Guidance explaining how it would assess proposals which were
made as part of the Inshore Fisheries Pilots initiative. The Guidance contained a list of
criteria which it expressly stated proposals would be considered against. The proposals
being submitted concerned large inshore areas, and fishing by many people in those areas.
Putting together proposals was a significant undertaking for the bodies submitting them.
Those submitting a proposal in response to Marine Scotland’s invitation were entitled to
have their proposals assessed in the way Marine Scotland had said it would. It was unfair
for Marine Scotland to adopt a different procedure, and not to assess the New Proposal
against the criteria it had specified. As was said in R (Lumba) v Secretary of State for the Home
Department [2011] UKSC 12 at paragraph 35:
“The individual has a basic public law right to have his or her case considered under
whatever policy the executive sees fit to adopt provided that the adopted policy is a
lawful exercise of the discretion conferred by statute”.
Although the cases differ on the facts, I consider this statement of general principle applies
in the present case. Marine Scotland issued the Guidance in exercise of discretion conferred
by statutory powers to regulate and licence of sea fishing. Proposals which were part of the
Inner Sound pilots initiative should have been considered under the policy set out in the
Guidance, of assessment against specified criteria. It was unfair not to do so.
[19] Marine Scotland did not act in accordance with legitimate expectations. Parties were
agreed that what was in issue was whether there was a procedural legitimate expectation
(the second of the three types of legitimate expectation identified in R v North and East Devon
Underwriting Agents Ltd [1990] 1 WLR 1545 at 1569H, Lord Justice Bingham stated:
“If a public authority so conducts itself as to create a legitimate expectation that a
certain course will be followed it would often be unfair if the authority were
permitted to follow a different course to the detriment of one who entertained the
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expectation, particularly if he acted on it…The doctrine of legitimate expectation is
rooted in fairness. But fairness is not a one-way street. It imports the notion of
equitableness, of fair and open dealing, to which the authority is as much entitled as
the citizen…on facts such as the present, [it would not be] fair to hold the revenue
bound by anything less than a clear, unambiguous and unqualified representation”.
The Guidance stated “Proposals will be considered on the basis of” and set out a list of
criteria. In my opinion, this was a clear, unambiguous and unqualified representation. It
was legitimate to expect that the New Proposal would be assessed against the criteria in the
Guidance. The fact that the Guidance gave further information saying that proposals might
be put out to consultation did not detract from that. The same criteria can be used for
assessment of proposals whether or not put out to consultation. If there was consultation,
any consultation responses would be taken into account by Marine Scotland when the
criteria were being considered to determine whether the pilot should proceed (as was in fact
done in the 2018 Outcome Report). I do not accept that it was lawful to frustrate this
legitimate expectation by failing to consider the New Proposal against these criteria. The
Scottish Ministers rely first on a justification given in paragraphs 103 to 107 of an affidavit of
Mr MacLeod of Marine Scotland, but this affidavit is about the Original Proposal. The New
Proposal was different. Reasons for rejecting the Original Proposal are not a justification for
frustrating the legitimate expectation which arose in relation to the New Proposal. The
Scottish Ministers also relied on paragraph 59 of the affidavit given by Mr Watson of Marine
Scotland. This gives information that Marine Scotland are continuing to modernise inshore
fisheries through deployment of appropriate tracking and monitoring across the fleet, and in
2020 and 2021 are introducing tracking systems across the in shore fleet. I am unable to find
that this affidavit provides a justification for the Scottish Ministers having departed from a
legitimate expectation that the New Proposal would be considered against the criteria
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published in the Guidance. I consider that frustrating the legitimate expectation I have
found to exist is a misuse of the Scottish Ministers’ powers.
[20] Marine Scotland also reached a decision that was irrational. First, it failed to take
into account material considerations. Marine Scotland did not consider the New Proposal
against the criteria in the Guidance it had published. I do not accept that the criteria fell
within any category of considerations a decision maker may choose for themselves whether
57). They were published criteria against which Marine Scotland had said proposals would
be considered. In my opinion, they were material considerations Marine Scotland was
obliged to take into account. I accept that the law makes a distinction between what is a
material consideration and the weight which should be given to it (Tesco Stores Ltd v
Secretary of State for the Environment [1995] 1 WLR 759 at 780F-G. The weight to attach to the
material considerations was ultimately for Marine Scotland. Nevertheless, as a matter of
law, the criteria as material considerations had to be taken into account, and were not.
Second, the rejection of the key parts of the New Proposal on the basis of the extent of
opposition alone was a conclusion so unreasonable that no reasonable authority could have
I refer back to my findings in paragraph [15] above. The 2020 Outcome Report assessed
opposition in a particular way. It did not link opposition to any particular criterion. No
reasonable decision maker would have considered the extent of opposition assessed in the
way it was in the 2020 Outcome Report as determinative of whether the pilot should
proceed.
[21] Marine Scotland also failed to provide adequate reasons for its decision not to take
forward key aspects of the New Proposal. There was no express duty incumbent on the
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Scottish Ministers to provide reasons, but where reasons have been given (as they were in
the 2020 Outcome Report) in general they should comply with legal standards of reasons for
decisions. In Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at page 348
the court stated that the decision maker “must give proper and adequate reasons for [the]
decision which deal with the substantial questions in an intelligible way”. The test therefore
requires the “substantial questions” to be dealt with. In this case, the substantial questions
included how the New Proposal measured up to the criteria in the Guidance (or possibly, if
Marine Scotland had decided to depart from the criteria in the Guidance, why it had done
so). The 2020 Outcome Report said nothing about these matters. The reasons given in it
were not proper and adequate to explain why Marine Scotland decided not to take forward
the key elements of the New Proposal.
[22] I did not consider that the ground of challenge of consistency added anything to the
other grounds. In the light of the opinion I have formed of the grounds of challenge above,
it is not necessary to consider other grounds any further.
Remedies
[23] The Scottish Ministers argued that even if Marine Scotland was found to have acted
unlawfully, remedies should be withheld under the public law discretion to withhold
remedies. Matters had moved on , there could be further dialogue through the Inner Sound
Management Advisory Group when it was formed, and this was not the final stage in
inshore fisheries management. I am not prepared to withhold remedies. I consider that
SCFF is entitled to expect that the New Proposal is properly considered with an open mind
against the criteria published by Marine Scotland, taking into account consultation
responses. It is true that it is some time since the Inshore Fisheries Pilots initiative was first
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launched in 2017. But Marine Scotland accepted the New Proposal as part of the Inshore
Fisheries Pilot initiative a few months after its initial decisions in the 2018 Outcome Report,
and put the New Proposal out for consultation in January 2019. Despite the 2019
Consultation suggesting it was intended the pilot would be operational by 1 April 2019 if it
went ahead, Marine Scotland took until 26 February 2020 to make and intimate a decision
about the New Proposal. The petition was brought timeously challenging the decision of
Marine Scotland on the New Proposal. Sea fish and fishers continue in existence, as do the
legislative powers of licensin g and regulating sea fishing conferred on the Scottish Ministers.
It would not be equitable for Marine Scotland to be excused from complying with its own
Guidance, when a significant amount of the time which has elapsed is due to Marine
Scotland’s delays.
[24] In the light of the findings which I have made, parties are encouraged to seek to
agree which orders in statement 4 of the petition the court should be invited to make. The
case will be put out by order for discussion of the remedies to be granted.