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SUNBEAM FISHING LTD FOR JUDICIAL REVIEW [2023] ScotCS CSOH_16 (28 February 2023)
URL: http://www.bailii.org/scot/cases/ScotCS/2023/2023_CSOH_16.html
Cite as:
[2023] CSOH 16,
2023 SLT 369,
[2023] ScotCS CSOH_16,
2023 GWD 10-104
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OUTER HOUSE, COURT OF SESSION
[2023] CSOH 16
P697/22
OPINION OF LORD SANDISON
In the petition of
SUNBEAM FISHING LIMITED
Petitioner
for
Judicial review of a decision taken by the Secretary of State for Environment, Food and
Rural Affairs
Petitioner: J Brown; DAC Beachcroft Scotland LLP (for Levy & McRae, Glasgow)
Respondent: Webster KC, Crabb; Office of the Advocate General for Scotland
28 February 2023
Introduction
[1]
Sandeels are small eel-like fish which feed primarily on plankton and bury
themselves in sandy substrates on the seabed to protect themselves from predators. They
are highly nutritious and thus a preferred prey for many other species of fish, aquatic
animals and seabirds. They are fished commercially and profitably for animal feed and
fertilizer.
[2]
The petitioner owns and operates a fishing vessel, the MFV Sunbeam, which has
fished for sandeel for many years. In July 2022 the Secretary of State for Environment, Food
2
and Rural Affairs determined, by a means and in furtherance of powers to be later
described, that UK-registered fishing vessels would not be permitted to catch any sandeel
for commercial purposes in 2022.
[3]
In this petition for judicial review, the petitioner, in short, seeks declarator that the
Secretary of State's 2022 determination was unlawful, both in substance and as to its timing.
It also seeks declaratory orders designed to ensure that the same claimed illegalities do not
attend any determination to be made by the Secretary of State about the UK fleet's ability to
catch sandeel in 2023. Other than in relation to the timing issue, it seeks those remedies in
the context of a claim that the Secretary of State's determination was unlawful as contrary to
Article 1 of the First Protocol to the European Convention on Human Rights and
Fundamental Freedoms ("A1P1"), which is in the following terms:
"Every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the public interest
and subject to the conditions provided for by law and by the general principles of
international law. The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary to control the use of
property in accordance with the general interest or to secure the payment of taxes or
other contributions or penalties."
Background
[4]
In order to understand the matters which require to be decided in the petition, it is
necessary to deal relatively extensively with background matters. The petitioner's position
is straightforward: it claims that it and its predecessor bodies as owners and operators of the
MFV Sunbeam participated in the sandeel fishery between 1987 and its effective closure
in 2021 and have held fixed quota allocation units (FQAs) enabling them to do so since 1999.
The petitioner used its own quota units in that connection and rented further quota annually
from other unit holders. The vessel was equipped as and when necessary with the specialist
3
gear acquired by the petitioner as a necessary investment to enable sandeel fishing, which is
conducted in shallow water at the edge of the Dogger Bank and similar locations in the
North Sea. The petitioner claims that its vessel landed all of the UK sandeel catch in recent
years, and that sandeel represented about 2.7% of the total catch in the North Sea.
Norwegian, Danish, Swedish and German vessels also fish extensively for sandeel in the
same areas as the petitioner did. The petitioner maintains that the only present limit on its
ability to catch sandeel is the lack of quota allocated for the use of the UK fishing fleet. It
maintains that sandeel stocks are stable and capable of exploitation within guidelines issued
by the intergovernmental marine science organisation dealing with the sustainable use of
seas and oceans, the International Council for the Exploration of the Sea (ICES), and that
fishing for sandeel would be profitable for it and represent a prudent diversification from its
principal operations in fishing for mackerel and herring, involving only marginal additional
costs. Another option, though not its' preferred one, would have been to sell rather than
exploit its own sandeel quota units, which are now said to be worthless.
[5]
From the point of view of the Secretary of State, the relevant background is much
more complex and nuanced, and involves the following:
Regulatory background
[6]
As a coastal state, the UK is subject to the requirements of the United Nations
Convention on the Law of the Sea, which obliges such states to manage the living resources
in their exclusive economic zone in a sustainable manner and to cooperate with other coastal
states on fish stocks that occur jointly in their respective zones (see in particular Articles 63
and 64 of the Convention). The UK co-operates with other coastal states to manage fish
stocks through annual consultations underpinned by international agreements. Of
4
particular relevance to sandeel fishing in this connection is the UK-EU Trade and
Cooperation Agreement (UK-EU TCA), specifically Articles 493 - 505 and Annex 35.
[7]
Each year the UK consults or negotiates with other coastal states in respect of a Total
Allowable Catch (TAC) to be shared amongst them for each stock of commercial interest,
which discussions generally turn on scientific advice received from the ICES. These
consultations are conducted by the UK Government with input from the devolved
administrations. Each agreed TAC is recorded in a written record of fisheries consultations.
The TAC is distributed amongst the interested states by an agreed mechanism. In the case
of a TAC agreed between the UK and the EU, Annex 35 to the UK-EU TCA sets out the
respective UK and EU shares of the stocks which straddle UK and EU waters (including the
sandeel stock). The UK share of the sandeel TAC was 2.74% in 2021 and will rise to 3.20%
in 2025. After consulting with the devolved administrations, the UK Government
determines in terms of s 23 of the Fisheries Act 2020 whether, and if so to what extent, any of
the UK share of the TAC for any fish stock is to be made available for apportionment in the
exercise of prerogative powers to the various domestic fisheries authorities and possible
onward allocation to industry. The determination is published and laid before Parliament.
It sets out catch quotas for most stocks, which limit the quantity of fish that can be taken
from that stock by UK vessels each year. The determination only deals with the UK share of
the quota. It does not provide quota for other states or set quota for foreign vessels. It may
also include conditions for some stocks, governing how the quota can be used.
[8]
Once the Secretary of State's determination has been made, the UK quota can then be
apportioned and allocated within the UK. "Apportionment" in this context refers to the
sharing of quotas by the Secretary of State amongst England (including the Crown
Dependencies), Northern Ireland, Scotland and Wales. "Allocation" (also known as
5
distribution) is a devolved responsibility in terms of s 25 of the 2020 Act and refers to the
subsequent sharing of quotas amongst operators in the fishing industry. The Secretary of
State is responsible for setting policy for the English share of the quota, which is then
executed by the Marine Management Organisation. Scottish Ministers are responsible for
setting policy for the Scottish share of the quota. UK Quota Management Rules set out how
apportionment will take place. Each part of the UK publishes its own quota management
rules which set out how allocation will take place.
[9]
The primary means of apportioning and allocating quota has since the late 1990s
been by means of fixed quota allocation units. They provide a share of the quota in a
particular stock to the FQA unit holder. Subject to one immaterial exception, FQA units can
be traded for value in money or money's worth by the fishing industry within the UK. The
petitioner holds FQA units for sandeel. Once quota has been apportioned and allocated, it
can also be traded within the UK, separately from the trade in FQA units. The petitioner has
in previous years also by this means acquired quota from other operators. The Secretary of
State is well aware of the trade in FQA units and in quota and, at least as a matter of
generality, does not attempt to hinder or prevent that trade. In the last year in which UK
vessels were permitted to fish for sandeel (2020), the petitioner landed the entire UK catch
(which amounted to 83% of the available quota).
2021
[10]
In 2021, delays in the finalisation of the terms of the UK-EU TCA and the
consequential fisheries consultation between the UK and the EU meant that there was a
need for provisional determinations to be made by the Secretary of State. During the
consultation, the UK Government advocated for a zero or very low TAC for sandeel. On
6
14 April 2021, a determination provisionally set the UK quota for sandeel at 2,127 tonnes.
Whilst that reflected a compromise between different positions, and was larger than the UK
had advocated for, the UK Government's concerns did not alter, and it decided that the UK
quota would not be apportioned or allocated for use. On 22 April, a revised version of the
UK Quota Management Rules was published which inter alia set out that position. That
decision was taken because the Secretary of State (in common with the Scottish Ministers)
entertained certain concerns - dealt with in detail below - about the effect that the sandeel
fishery might be having on biodiversity and food webs. On 23 April 2021, the Marine
Management Organisation emailed provisional quota allocations to the fishing industry,
repeating that no sandeel quota would be made available for 2021. On 11 June the UK and
the EU published the written record of their annual consultations which recorded the UK
quota for sandeel as 2,534 tonnes. On 19 July the Secretary of State published an updated
determination to reflect that written record. This included setting the UK quota for sandeel
to be 2,534 tonnes. As previously intimated, the UK quota for sandeel was not then
apportioned or allocated for use in 2021. That position, and a brief explanation for the
reasons behind it, was set out in letters from the responsible Parliamentary Under Secretary
of State to the MP for the petitioner's local Banff and Buchan constituency in July 2021 and
subsequently directly to a director of the petitioner in October 2021. The petitioner raised
judicial review proceedings in this court in respect of its non-receipt of sandeel quota
for 2021, but as a result of a failure to understand the intricacies of the regulatory system,
raised those proceedings against the Scottish Ministers, who were able to point out in
response that they had received no such quota to allocate from the Secretary of State. The
proceedings were abandoned and the matter was not further pressed in respect of 2021.
7
2022
[11]
As to 2022, on 29 December 2021 the Secretary of State made a determination for
the 2022 fishing year, which set a UK quota of zero for sandeel, subject to review. On
11 March 2022, the UK and EU agreed to establish the TAC for sandeel in 2022 at
88,844 tonnes, with the UK quota being 2,541 tonnes. On 24 March the Scottish Government
advised the UK Government that there were no plans to allocate the Scottish share of the UK
quota for sandeel in 2022 if it was apportioned and on 28 June the Cabinet Secretary for
Rural Affairs and Islands in the Scottish Government wrote to the Secretary of State to call
for there to be no apportionment of UK quota for sandeel in 2022. On 6 July the Secretary of
State published an updated determination, which set the UK quota for sandeel to be
2,541 tonnes. That quota was not then apportioned or allocated for use in 2022. The UK
QMR continued to note, as it had since April 2021, that the sandeel quota would not be
apportioned or allocated.
2023
[12]
In respect of 2023, on 23 December 2022 the Secretary of State made the first
determination for the fishing year, which set a UK quota of zero for sandeel, subject to
review once the annual UK/EU consultation is completed. If there is to be an apportionment
of UK sandeel quota, the Secretary of State intends to effect that as soon as possible, so as to
allow maximum time for the quota to be used, but there is no guarantee that any
apportionment or allocation will in fact take place.
8
Policy and scientific background
[13]
The UK Government's decisions not to apportion the UK quota for sandeel in 2021
and 2022 were based on its assessment of policy considerations and scientific research.
Following the UK-EU TCA, the UK was able to act as an independent coastal state with
respect to the management of its waters. The UK Government considered that there was
evidence to suggest that additional restrictions on sandeel fishing would support the UK's
commitment to an ecosystem-based approach to fisheries management (as set out in the
Fisheries Act 2020) and help the UK achieve various biodiversity targets including Good
Environmental Status (GES) in fish, seabirds and food webs.
[14]
The Marine Strategy Regulations 2010/1627 are intended to assist the UK to comply
with its international obligations to protect and preserve the marine environment. As long
ago as 2012, the Marine Strategy Part One publication reported concern about fisheries
pressure on sandeel affecting seabirds, in particular kittiwakes, citing evidence from a
sandeel fishery off south-eastern Scotland, which was said to have significantly depressed
the adult survival and breeding success of black-legged kittiwakes compared with years
prior to the fishery opening and after it was closed in 2000. In 2015, the Marine Strategy Part
Three publication continued to express concern about downward trends in breeding success
of seabirds in the Greater North Sea and northern Celtic Seas. It referred to statutory
controls across the devolved administrations such as a sandeel fishing closure off North-East
England and East Scotland since 2000 as a direct measure for seabird conservation, and
voluntary bans on sandeel fishing around Shetland. It stated that:
"There is evidence that the sandeel fishing closure off North-East England and East
Scotland has had a positive impact on the breeding success of kittiwake colonies
adjacent to the closed area. The recent change to smaller scale management of
sandeel stocks is a positive move".
9
[15]
In October 2019 DEFRA published an updated Marine Strategy Part One document
which required the UK to take action to achieve or maintain Good Environmental Status
(GES) in its seas by 2020. GES entails clean, healthy, safe, productive, and biologically
diverse oceans and seas. The document noted that GES for the whole marine food web was
uncertain and that breeding seabird populations were not consistent with GES, perhaps as a
result of the lower availability of small fish such as sandeel. It committed the UK
Government to improving understanding of the reasons why seabird and waterbird
populations around the UK coast remained at risk and to use appropriate measures to
improve their status, as well as to the implementation of measures to support fishing at
sustainable levels and to reduce the impact of fishing on the status of commercial and other
fish populations. In addition to the obligations of the Marine Strategy, the Fisheries Act 2020
also identifies in terms of its section 1 objectives that:
"fish and aquaculture activities are managed using an ecosystem-based approach so
as to ensure that their negative impacts on marine ecosystems are minimised and,
where possible, reversed".
An "ecosystem-based approach" is defined by section 1(10) of the 2020 Act as an approach
which ensures that the collective pressure of human activities is kept within levels
compatible with the achievement of GES.
[16]
Several scientific journals have in recent years published papers examining sandeel
availability and its relationship with the wider ecosystem. The scientific evidence is
considered by DEFRA to support the suggestion that sandeel abundance benefits the food
web and the wider ecosystem, and that the impact of fisheries on local sandeel populations
may have adverse effects on predators with high site fidelity. A lack of large-scale larval
dispersal combined with limited larval exchange between sandeel areas is thought to mean
that local aggregations of sandeel may be vulnerable to depletion by fisheries, which can
10
increase the risk of adverse effects on local predators even if the total North Sea stock
remains within biologically safe limits. In the Greater North Sea, the GES target has not
been met for seabirds, with 35% of species experiencing frequent and widespread breeding
failures between 2010-2015. In June 2021 the RSPB published a report entitled "Revive our
Seas: The case for stronger regulation of sandeel fisheries in UK waters". DEFRA has been
provided with a modelled assessment of the ecosystem benefits of full prohibition of sandeel
fishing in the UK waters of the North Sea, which predicts that such a prohibition would lead
to an increase in seabird biomass of 7% in around 10 years. That assessment has, however,
not yet been put in the public domain.
[17]
DEFRA has also determined that there was a likely need for additional and further
action to ensure the sufficient protection of sandeel and the wider ecosystem dependent
upon them. On 22 October 2021 the Fisheries Administrations (Marine Scotland, DEFRA
and the Welsh Government) made a joint Call for Evidence on future management of
sandeel. The Administrations indicated that they remained concerned that there was
limited evidence of either the recovery of the relevant stocks or the wider ecosystem as a
result of the management measures (including the non-allocation of the 2021 quota) taken to
date, that that was hindering the UK's ability to reach GES for seabirds, and that urgent
action was required to protect stocks and the wider ecosystem from increasing pressures.
There were 36 responses to the Call for Evidence, including from the fishing industry
producer organisations. DEFRA considered that there was a reasonably high level of
awareness amongst stakeholders of the relevant concerns, and that further evidence on
fishing, bio-diversity and food webs would ensure that the most up-to-date scientific
evidence was available. A report was commissioned in 2022, and DEFRA is currently
reviewing its policy on the impact of industrial fishing for sandeel on the wider marine
11
ecosystem in order to develop a proposal for Ministerial approval to consult on a number of
further management measures.
[18]
On 25 February 2022, ICES produced advice on fish stocks including sandeel stocks.
That advice included recommendations that in various areas of the North Sea there should
be zero catches of sandeel. On 11 March, the UK and EU delegations considered sandeel
stocks and agreed to establish the TAC for sandeel in 2022 at 88,844 tonnes, with the UK
being allocated 2,541 tonnes. That represented a 4% decrease on the TAC for 2021.
However, the UK approach was to follow the ICES advice, and the TAC was set only for the
management areas where ICES had recommended a catch above zero (aside from permitting
a monitoring TAC to enable scientific research to continue).
[19]
The EU/UK consultation on the 2023 sandeel TAC has yet to take place.
Petitioner's submissions
[20]
In written and oral argument on behalf of the petitioner, counsel accepted that the
Secretary of State ought to be accorded a wide margin of appreciation in having regard to a
range of competing considerations in the process of arriving at his section 23 determinations,
including environmental or conservation objectives, and in deciding what relative weight to
accord to such considerations. He accepted that it had been open to the Secretary of State to
find in the material before him an evidential basis for the general conclusion that prohibiting
sandeel fishing would produce environmental benefit, and that in principle, therefore, it had
been open to him lawfully to prohibit or substantially to restrict sandeel fishing in UK
waters.
[21]
However, the petitioner advanced two criticisms of what had been done. Firstly, the
petitioner contended that it was essentially futile to introduce a supposed conservation
12
measure that prohibited only about 2% of sandeel fishing in UK waters while leaving the
remaining fishery unaffected, given the absence of any evidence that this would have more
than a symbolic impact. Secondly, there had been no apparent consideration of the
petitioner's rights under A1P1, and no attempt to balance any benefit with the adverse
impact on the petitioner of the decision. The two criticisms were linked by the issues of
proportionality which arose; the less cogent or immediate the achievable policy objective,
the greater the regard that should have been had to adverse consequences that might follow
from pursuing it.
[22]
The petitioner's FQAs were readily to be seen as "possessions" within the meaning
of A1P1. It was well settled that in that context "possessions" had an autonomous meaning
and was not limited to ownership of property in the strict sense. That question had been
extensively discussed and correctly answered by Cranston J in UK Association of Fish
Producer Organisations v Secretary of State for the Environment, Food and Rural Affairs
quota itself could be, and were, bought and sold for value as component parts of a greater
business enterprise. The enterprise itself and its component parts were all the petitioner's
possessions within the meaning of A1P1. In R (States of Guernsey and another) v Secretary of
Jay J had, at [103] - [109], effectively endorsed the approach and reasoning of Cranston J in
UKAFPO. Assistance might also be found in Lady Smith's decision in Watt v Watt
companies that operated the vessels with quota reflected the real and measurable economic
value in FQA units. The opinion of Lord Uist in Christina S FR 224 & Ors v Scottish
Ministers [2013] CSOH 85 that FQA units were not possessions for A1P1 was not based on
13
full argument or citation of authority and should not be followed. It erroneously ran
together the distinct questions of whether FQAs were "possessions" and whether what was
complained of in the case amounted to an interference with those possessions. Some
additional support for the petitioner's submissions could be found in Lord Ericht's opinion
particular the conclusion that there was a prima facie case under A1P1 so far as relating to
fishing licences as "possessions".
[23]
The general approach which ought to be taken to the interpretation and application
of A1P1 had been authoritatively set out by Lord Reed in AXA General Insurance Ltd v Lord
concept of legitimate interference with possessions had been considered by the Supreme
Court in a context (restriction of traditional salmon fishing in the Severn estuary) similar to
Lord Carnwath had there observed at [32], the historic distinction in the A1P1 jurisprudence
between cases involving mere controls on use and those involving de facto expropriation was
"neither clear cut nor crucial to the analysis", and it was more helpful to consider whether
the burden imposed was excessive or disproportionate when asking whether the decision
maker had struck the "fair balance" that is required.
[24]
The petitioner's complaint of excessive or disproportionate impact on it as a result of
the Secretary of State's determination regarding the 2022 season ought to be sustained.
Specifically:
(i)
The sandeel fishery was a hitherto lawful trade that had been carried on by
the petitioner to considerable profit over many years, in consequence of significant
capital investment made by it for that specific purpose.
14
(ii)
Vessels from the EU and other coastal nations continued to fish for sandeel in
UK waters in a manner unaffected by the Secretary of State's decision; and in doing
so take about 98% of the total allowable catch in UK waters.
(iii)
The TAC was itself the product of extensive negotiation between the EU and
other relevant states and might be assumed to have been fixed having regard to a
broad consensus on environmental considerations. Although the Secretary of State
was entitled to decide that the UK should go further than the EU consensus on
conservation grounds, it remained relevant that there was such an EU consensus.
(iv)
The decision complained of entirely prevented the petitioner from exploiting
its existing rights to catch sandeel. It was thus very much at the de facto expropriation
end of the spectrum.
(v)
The petitioner appeared to be the only UK operator affected. The Secretary of
State must have known that the UK sandeel quota was being fished, and that no
vessel other than Sunbeam was fishing it. Despite that, there was no suggestion that
the petitioner's convention rights had even been thought about. It had lost
substantial recurring profit and thus the capital value of the ability to generate such
recurring profit. Its capital investment in gear had been rendered worthless.
(vi)
In assessing proportionality, regard ought to be had to the extremely limited
conservation impact that the decision could have. Even on the DEFRA figures at
which the Secretary of State hinted, the effect of his determination was nugatory.
There was no proper basis for any suggestion that in and of itself the prevention of
the MFV Sunbeam alone of all the vessels that pursue sandeel from doing so would
have any measurable environmental impact. At this juncture the measure was
properly to be seen as of symbolic rather than practical value in achieving that
15
conservation objective. While the petitioner did not doubt the value that symbolism
might have, and in particular the view that sometimes it was appropriate for one
state to take a lead on environmental matters in the hope of building support from
others, for present purposes the point was simply that symbolism raised clearly
different proportionality considerations than would arise in relation to a measure
having direct environmental impact.
(vii)
No indication had been given of any future policy proposal, presumably
because the existing UK/EU transitional arrangement had some time to run and no
decision had yet been taken as to what might follow it, since that in turn would be
bound up with negotiations ranging far beyond fisheries policy. However, there had
been no indication of an intention to prohibit sandeel fishing generally in UK waters
once it became possible to do so. Had there been such an indication it might have
been a relevant factor in assessing what weight should be given to the symbolic first
step that had been taken.
(viii)
Given that the petitioner appeared to be the only operator affected and given
the relatively modest size of the catch, it would not impose a disproportionate
burden for the policy objective to be met by a scheme that involved compensation for
the loss of the ability to catch sandeel. The Secretary of State had obvious means at
his disposal to address this issue other than payment of monetary compensation,
such as by adjusting allocations in respect of other species to reflect the withdrawal
of the right to pursue sandeel.
(ix)
Alternatively the policy objective was not so obviously urgent (having regard
to its very limited practical effect) that it would be defeated by being introduced in a
phased manner with a period of notice to allow adjustment by operators.
16
On the timing issue, the petitioner's concern was to ensure that it was not placed again in
the situation of uncertainty of having no final determination of the allocation issue until the
practical opportunity of fishing for any sandeel quota that might be made available had
expired as a result of the ending of the relative fishing season, as had happened in 2022.
There was no good reason for the determination not to be made timeously. The Secretary of
State could undertake to do so in future years and that would dispose of the issue, but if no
such undertaking was offered the court should declare that that what had happened in 2022
was unlawful, as a guide to his future conduct.
Respondent's submissions
General
[25]
On behalf of the Advocate General for Scotland, responding to the petition as
representing the Secretary of State for Environment, Food and Rural Affairs, senior counsel
submitted that the minister should be accorded a wide margin of discretionary judgment in
areas of socio-economic policy, under reference to In re Brewster [2017] UKSC 8,
[2017] 1 WLR 519 at [49]. The protection of the environment was an increasingly important
consideration in determining where the public interest lay Hamer v Belgium
(App. 21861/03) - and accordingly a less intrusive review by the court was required given
the location of the issue within the macro-political field and the relative expertise of the
decision-maker: UKAFPO at [92.9]. It should be noted that there was no inherent right to
fish. On the contrary, section 14(1) of the Fisheries Act 2020 provided simply that "Fishing
anywhere by a British fishing boat is prohibited unless authorised by a licence". No clear,
unambiguous or unqualified undertaking or representation had been given as to sandeel
apportionment (cf UKAFPO at [99]), and a commercial business operating under licence
17
could not assume that law and policy would never change to its disadvantage - Axa at [38]
to [40]. The declarators sought as to future determinations were inspecific and premature.
"Possessions"
[26]
The FQA units held by the petitioner allowed it to access a share of any allocated
catch quota, but there was no right inherent in those FQA units to have any catch quota
allocated, only to a percentage of any quota as might in fact be allocated. That meant that
FQA units were not possessions for the purposes of A1P1, because they did not constitute an
asset with a right to any quota - Christina S FR (supra) at [32] and [34]. The petitioner had no
settled entitlement to any catch quota - cf Kopecky v Slovakia (2005) 41 EHRR 43 at [45] to [52].
A1P1 did not create a right to acquire property - Denisov v Ukraine (App. 76639/11), at [137].
Cranston J had reached the wrong conclusion on this point in UKAFPO, as had Jay J in States
of Guernsey. Reference was also made to observations to similar effect in neryildiz v Turkey
(App. 48939/99) at [124], to Greek Federation of Customs Officers and others (App. 24581/94)
at [1], and to O'Sullivan McCarthy Mussel Development Ltd v Ireland (App. 44460/16) at [85]
to [91].
Deprivation or interference
[27]
Further, if FQAs were possessions, the actions of the Secretary of State had not
deprived the petitioner of its FQA units or any benefits they might afford. They remained of
such value to the petitioner as they ever had. It could continue to sell or buy them as it saw
fit. It was inherent in the character of FQAs that in any year the quota in which they
afforded a share might be substantially reduced, even to zero - UKAFPO at [116]. That did
not amount to a deprivation of possessions in terms of A1P1. At its highest, it might amount
18
to a form of control of the use of the FQAs; cf O'Sullivan McCarthy at [104]. That was a
lawful consequence of the Secretary of State's assessment of where the public interest lay on
the basis of the ecological concerns which had been expressed and while awaiting the results
of the call for evidence which had been put out. The determination had been made for one
year only, not on a permanent and ongoing basis. Reference was again made to Axa
at [107] - [108]. The petitioner had no legitimate expectation of any apportionment of quota
in 2022. None had occurred in 2021, and the petitioner's legal challenge to that situation,
directed against the Scottish Ministers instead of the Secretary of State, had been abandoned.
What had happened in relation to the quota had been foreseeable having regard to the
legislative and policy framework, including the TCA - R (Miller) v Secretary of State for
Proportionality
[28]
In any event, the Secretary of State's determination not to apportion quota for 2022
struck a fair balance between the public interest and the private interest to have peaceful
enjoyment of property rights. A1P1 rights could not in any way impair the right of a state to
enforce such laws as it deemed necessary to control the use of property in accordance with
the general interest - Re Brewster at [44]. Respect should be given to the UK Government's
position in taking a moral and diplomatic stance in the international sphere - R (Friends of
Antique Cultural Treasures Ltd) v Secretary of State for Environment, Food and Rural
[29]
The petitioner had not been treated differently or disproportionately when compared
with others whose position the Secretary of State's determination had the power to affect,
which did not include foreign vessels. So far as the Secretary of State was concerned, there
19
were 16 entities holding FQA in the UK sandeel quota, all of whom had been affected in
exactly the same way by his determination. The petitioner held about one-third of that FQA,
but there was a Northern Irish operator which held a slightly larger share. It was accepted
that the petitioner had landed all sandeel caught by use of the UK FQA in 2020, the last year
in which fishing was permitted, and that that implied that the petitioner had traded in the
market to acquire FQA or at least quota in that year. It was further accepted that there was
no material that could be laid before the court suggesting that the Secretary of State had
considered the possible effect of his determination on the petitioner's convention rights. On
the other hand, while it was clear that the successful claimant in Mott had had his entire
livelihood taken from him by the decision complained of in that case, the petitioner's
sandeel fishing operations in 2020 appeared to have contributed only about 16% of the
overall value of its landed catch, most of which came from its other operations in mackerel
and herring fishing.
[30]
The Secretary of State considered the determination a significant and worthwhile
conservation measure. Furthermore, the petitioner, as a commercial enterprise, had had
direct and indirect communications with the UK Government and should have been
expected to have been aware of the concerns about sandeel fishing - cf Fredin v Sweden
compensation was merely a factor to be taken into account in determining whether a fair
balance had been met, and did not of itself constitute a violation of A1P1 Depalle v
[31]
As to the timing complaint, whilst the 2022 determination had post-dated the sandeel
fishing season in 2022, there had been no basis for a legitimate expectation of a
determination by any particular date and a declarator of unlawfulness in that regard would
20
be pointless. Further, since the substantive determination had been lawful, its timing was
academic and declarator as to that matter should be refused Wightman v Secretary of State
Decision
"Possessions"
[32]
The first question for decision is whether the Secretary of State's determination
affected anything properly to be regarded as a possession of the petitioner within the
meaning of A1P1. There is no dispute that the concept of "possession" in this context has an
autonomous meaning which is not limited to ownership of material goods and is
independent from any formal classifications of domestic law. In UKAFPO, Cranston J
carried out a careful analysis of the principles applicable in the resolution of the question as
it arises in the present case. Under reference inter alia to Tre Traktörer AB v Sweden
General
connected with the running of a business were capable of being regarded as "possessions".
In the case of such an interest having a monetary value which could be marketed for value
by way of sale, lease or license (as opposed to interests which were neither marketable nor
had been obtained at a market price, even though they had a value to the holder because,
without them, it could not carry on the licensable activity) qualification as a "possession"
would be clear. Because the quota units in that case, like those in this, were the objects of
21
open and lawful trade by way of sale and lease, used as security for borrowing and regarded
as capital assets for taxation purposes, they qualified on that basis as "possessions".
[33]
In the Christina S FR 224 case, Lord Uist was dealing with a slightly different
situation but appeared attracted by the argument that, because quota units did not give their
holder any actual right to quota in any certain amount, or indeed in any amount at all, they
would not be "possessions" for the purposes of A1P1. The answer to that appears from the
States of Guernsey case, in which Jay J noted that it was necessary not to confuse the question
of whether something was a possession with the separate question of whether what was
being complained of was an interference with it. The same case deals equally succinctly
with a related point arising out of the respondent's repeated insistence that the petitioner
had no "legitimate expectation" that quota would in fact be apportioned and allocated in
respect of its FQA - if something qualifies as an existing possession (which is the contention
of the petitioners here in relation to its FQA), then the question of the presence or absence of
any legitimate expectation as to what the future may hold for that possession does not arise.
Such considerations apply only to things which are contended to be contingent or future
possessions, although again they may weigh, perhaps heavily, in deciding whether there has
been any relevant interference with an existing possession, if so what the precise nature of
that interference is, and in balancing issues of proportionality of the interference. In
summary, the fact that FQAs carry with them no entitlement to quota and thus to the
income which may flow from the exploitation of quota does not deprive them of their status
as objects of trade, though it may affect their value as such. I have no hesitation in regarding
that status as a sufficient condition to qualify FQAs as "possessions" for the purposes of
A1P1 for the reasons identified by Cranston J's analysis in UKAFPO.
22
[34]
The cases cited by the respondent do not detract from that analysis. Kopecky and
neryildiz on the one hand, and Denisov and Greek Federation of Customs Officers on the other,
were considering how the limits on how far things that were not "existing possessions"
(respectively, claims to restitution of confiscated property or for compensation for destroyed
property, and an expectation of earning money from an office of profit) might nonetheless
qualify as proper objects for the application of A1P1. They have nothing in particular to
contribute to resolution of the issues in this case.
[35]
Further, it is not possible to proceed on the narrow basis that the status of FQAs as
"possessions" or not provides in itself the answer to the true first question which arises in
this case, namely whether the Secretary of State's determination affected any possession of
the petitioner falling within the ambit of A1P1. The answer to that question appears clearly
from O'Sullivan McCarthy, a case concerning a temporary prohibition on mussel seed
fishing - an activity which the applicant conducted under government license - in which the
ECtHR formulated the overarching question as being whether the circumstances of the case,
considered as a whole, conferred on the applicant title to a "substantive interest" protected
by A1P1. It cited the survey of the court's relative jurisprudence carried out in Malik v the
United Kingdom (App. 23780/08), observing that the court had previously indicated in cases
concerning the grants of licences or permits to carry out a business that the revocation or
withdrawal of that permit or licence could interfere with applicants' rights to the peaceful
enjoyment of their possessions, including the economic interests connected with the
underlying business, without having felt it necessary to determine whether the licence or
permit was itself a possession, preferring instead an analysis which saw restrictions placed
on licences, etc., as merely the means whereby interference with a possession constituted by
the underlying business had been effected. It then continued:
23
"88. In line with the above, the Court considers that the present case concerns a
`possession', namely the underlying aquaculture business of the applicant company.
It is true, as the Government pointed out, that all of the various licences and
authorisations held by the applicant company retained their validity in 2008. In this
respect, the case differs from cases previously decided by the Court, which involved
the cancellation or revocation of a licence or permit, putting an end to a commercial
activity ... The Court observes, however, that it has also found that Article 1 of
Protocol No. 1 applied even where the licence in question was not actually
withdrawn, but was considered to have been deprived of its substance (Centro Europa
7 S.r.l. and Di Stefano v Italy [GC], no. 38433/09, §§ 177-178, ECHR 2012).
89. Mindful of the need to look behind appearances and investigate the realities of
the situation complained of in the present case, the Court considers that the
temporary prohibition on mussel seed fishing that applied during the periods in
question in 2008 is properly to be regarded as a restriction placed on a permit the
mussel seed authorisation issued to it for 2008 connected to the usual conduct of its
business.
90. For the Court, the facts of the case thus disclose an interference by the domestic
authorities with the applicant company's right to the peaceful enjoyment of its
possessions, including the economic interests connected with the underlying
business. However, the fact that the impugned interference consisted of a temporary
prohibition of part of the applicant company's activities under licence or permit, that
the authorisation was not withdrawn or revoked, and that in any event the
authorisation by virtue of which the applicant company conducted its business was
subject to conditions, will all form part of the Court's analysis of the nature and
extent of that interference ...".
The same approach falls to be adopted in the present case. Whether or not FQAs are
"possessions" in their own right, they provide the means whereby a business - that of the
petitioner fishing for sandeel - might lawfully be carried out. If rights which might
otherwise have flowed from the FQAs in any given year are withheld by the Secretary of
State, that is capable of representing an interference with the petitioner's right to the
peaceful enjoyment of its possessions, including the MFV Sunbeam itself, its specialist
sandeel fishing gear, and indeed the various economic interests connected with the
underlying business. The facts that the putative interference is at least ostensibly temporary
in nature, that the FQAs continue to be held by the petitioner, and that it is in the nature of
FQAs that they do not carry any right to a particular (or any) apportionment or allocation of
24
quota will all form part of the analysis of the nature and extent of that interference and all
that flows therefrom, but are not capable of displacing the conclusion that, whatever the
position in relation to the FQAs themselves, the economic interests connected with the
underlying business are themselves relevant "possessions" for the purposes of A1P1.
Interference
[36]
Having determined that the petitioner has possessions relevant to A1P1, the next
step is to consider whether there has been an interference with those possessions or any of
them and, if so, the nature of the interference, in particular whether it constitutes a
deprivation of the possession in question, is a control of its use, or is a more generalised
interference with its peaceful enjoyment, bearing in mind that the importance of
classification should not be exaggerated (Axa at [108], Mott at [32]). In the case of the MFV
Sunbeam itself and the specialised sandeel fishing gear with which the petitioner has
equipped itself, it is easy to see the interference effected by means of the determination not
to apportion otherwise-available sandeel stocks as a control on their use. But for that
determination the Sunbeam would (subject to whatever might have happened in relation to
allocation by the Scottish Ministers) have put to sea for periods during 2022 to catch sandeel
with its gear adapted for that purpose. The Secretary of State's determination has precluded
the petitioner using the vessel and the gear to that end, and has thus controlled the use to
which they might otherwise have been put for the purposes of enhancing the economic
interests connected with the underlying business. The proper classification of any
interference with the petitioner's FQAs themselves by way of the determination of the
Secretary of State is perhaps less obvious, given that it is of the nature of FQAs that
whatever effective rights they bring is inherently subject inter alia to that determination. If it
25
is necessary to decide whether the determination constituted relevant interference with the
FQAs, and if so what the nature of that interference was (and I do not consider that it is,
because the petitioner is in practical terms concerned only with interference with its business
and other assets), then I would hold that it was such interference, again by way of the
imposition of a control of the use to which FQAs might otherwise have been put, namely to
share in the UK/EU agreed TAC for 2022.
Violation of A1P1?
[37]
The final stage of determining whether the interference with the petitioner's
possessions discussed and identified above constituted a violation of its A1P1 rights consists
in deciding, as described in Axa at [108], whether it has been:
"shown that the interference complies with the principle of lawfulness and pursues a
legitimate aim by means that are reasonably proportionate to the aim sought to be
achieved. This final question focuses upon the question whether a fair balance has
been struck between the demands of the general interest of the community and the
requirements of the protection of the individual's fundamental rights ... In that
regard, the Strasbourg court accepts that a margin of appreciation must be left to the
national authorities."
There must be:
"a reasonable relationship of proportionality between the means employed and the
aim pursued. In determining whether this requirement is met, the Court recognises
that the State enjoys a wide margin of appreciation with regard both to choosing the
means of enforcement and to ascertaining whether the consequences of enforcement
are justified in the general interest for the purpose of achieving the object of the law
in question. The requisite balance will not be achieved if the person concerned has
had to bear an individual and excessive burden ..." (O'Sullivan McCarthy at [115]).
[38]
As there is no suggestion in the present case that the Secretary of State's
determination separately contravenes any requirement of lawfulness, the question of
whether it strikes a fair balance between the public interest on the one hand and the
petitioner's fundamental rights on the other is what requires to be considered. The first
26
stage in that exercise is to consider whether, and if so, to what extent, the prevention of UK
vessels from fishing for sandeel serves the environmental objectives which are said to justify
it. In this regard the petitioner accepts, consistently with the importance of environmental
protection to society as a whole and the wide margin of discretionary judgment afforded to
ministers in that context, that in principle it was open to the Secretary of State to take the
view on the basis of the scientific and other material before him that prohibiting sandeel
fishing by UK vessels would produce environmental benefit. Rather, the difficulty lies in
assessing the proportionality of the contemplated benefit with the corresponding detriment
to the petitioner's possessory interests. Counsel for the Secretary of State was unable to
suggest that any consideration at all had been given to that question in the process leading
to the making of the determination. It follows that there is no relative assessment to which
the court must afford an appropriate degree of deference; rather, it has to approach the
issues by itself without such assistance as might have been gained from a consideration of
what the Secretary of State actually thought of them at the time.
[39]
In this connection the petitioner founds strongly on the consideration that the
Secretary of State's determination, which affects only 2.8% of the UK/EU TAC, has not been
shown to have more than symbolic value for environmental purposes. It is correct that no
clear explanation is before the court which sets out with any degree of particularity what the
benefits flowing from the determination are thought to be. As already noted, an affidavit
provided to the court by a civil servant with much experience in this policy area states that
DEFRA has been provided with a modelled assessment of the ecosystem benefits of full
prohibition of sandeel fishing in the UK waters of the North Sea, which predicts that such a
prohibition would lead to an increase in seabird biomass of 7% in around 10 years.
However, since the determination does not effect a full prohibition of such fishing, not even
27
for 1 year, let alone 10, and the Secretary of State did not see fit - for no reason made clear to
me - to put the modelled assessment before the Court for direct examination and
consideration, I do not find it possible to draw any definite conclusion from that evidence. I
am equally unimpressed by the suggestion that the determination ought to be regarded as
having inherent value as a moral and diplomatic stance, as in the Friends of Antique Cultural
Treasures Ltd case. There, evidence was placed before the court, and accepted by it, that in
the context of the international ban on the trade of ivory, the underlying policy objective
could:
"be achieved only by the creation of an international hegemony and mutual
international support which has the effect of minimising the opportunities for
demand suppressed in one state to spring back up elsewhere"
and that the trading ban was:
"integral to the efforts of the UK in persuading other states to act likewise. If the UK
had not imposed stringent import, export and domestic bans it would lose moral or
political credibility at the international plane and it would lose the ability to form an
active and influential part of that international hegemony" [76] - [77].
There is no evidence in this case that that the removal of 2,541 tonnes of sandeel from the
market in consequence of the determination is liable to result in the supply of that or any
other amount from source that would not otherwise have been exploited, nor that the UK
would lose any moral or political credibility or influence with the EU by choosing to fish the
quota which lengthy and detailed negotiations had afforded it. On the other hand, neither
do I find it possible to conclude, as the petitioner suggests, that the determination
complained of should be regarded as having only symbolic value. In consequence of it
being made, up to 2,541 tonnes of sandeel - amounting to many thousands of fish - will
remain in the sea which might otherwise have been caught, making a contribution of some
kind to the future population and to the food chain which cannot be assumed to have no
28
practical value at all. I conclude that the Secretary of State's determination has some, albeit
limited, environmental benefit.
[40]
Turning to consider the effect of the determination on the petitioner, it is appropriate
to set the discussion against the general background, set out above, that there is no general
right to fish, that regulatory mechanisms exist which can and do routinely restrict the catch
that can lawfully be taken from various stocks in any year, and that the petitioner had been
given no express or implicit assurance that the previous policy on sandeel fishing would
continue. This is not a case where a hitherto entirely lawful and unregulated activity was
suddenly and unexpectedly proscribed. The existence of a regulatory background capable
of preventing the carrying on of an activity was considered relevant to the striking of the
appropriate balance in O'Sullivan McCarthy at [104] and [116]. That said, the petitioner was
still entitled to proceed on the basis that the regulatory powers in question would only be
exercised in compliance with its convention rights; I do not, therefore, consider that the
mere existence of a regulatory background can in itself be decisive in the relevant balance.
[41]
Of more moment may be the further observations in O'Sullivan McCarthy at [117] to
the effect that a commercial operator in a particular field of endeavour "can be expected to
display a high degree of caution in the pursuit of its activities, and to take special care in
assessing the risks that may attach to those activities" and that there may be circumstances
in which a person complaining of a breach of its A1P1 rights "should have been aware of a
possible risk of interruption of, or at least some consequences for, its usual commercial
activities", a factor which the court concluded could not be disregarded when assessing the
burden of an interference on that person. As set out in detail above, the effect of sandeel
fishing on seabird numbers, and thus on the wider maritime ecology, had been a matter of
escalating and public concern for at least a decade by 2022. Further, the 2021 determination
29
that there would be no British sandeel quota released for use that year, and the explanation
for that determination provided specifically to the petitioner by the Under Secretary of State,
ought to have given rise to an apprehension if not an expectation on its part that the position
would remain the same in 2022. While I do not accept that the botched attempt by the
petitioner to challenge the 2021 determination in this court at all prevents it from mounting
this challenge to the 2022 determination, the fact that the latter determination cannot be said
to have been remotely unpredictable necessitates a close examination of the extent to which
any burden on the petitioner is truly the result of the determination as opposed to the result
of a failure on the part of the petitioner to read the plain writing on the wall and to take
appropriate and available steps to mitigate the effect of a likely regulatory intervention in
connection with the sandeel fishery on its business.
[42]
The petitioner is clearly and understandably concerned that in practical terms the
MFV Sunbeam is the only vessel affected by the determination complained of, and claims
that the determination's effect on it is accordingly individually disproportionate. However,
on closer examination it is apparent that the determination affects only the petitioner
because it has put itself, in recent years, into the position of operating the only UK vessel
fishing for sandeel. It has done that by buying in the market access to the UK quota in
sandeel to which it does not already have access in consequence of its relative FQAs.
Although there is no reason to suppose that that practice would not have continued had
commercial sandeel fishing been permitted in 2022, the reality is that the petitioner itself
holds only about one-third of the FQAs in issue and any further exposure to the
consequences of the determination is voluntary for it. The determination can affect only
UK-registered vessels and that is accordingly the comparator group upon which a
consideration of disproportionate effect must proceed. The determination applies equally to
30
every vessel in that fleet and in practice affects the operators of such vessels as hold sandeel
FQA, of which there are more than a dozen. On analysis, then, the apparently
disproportionate effect on the petitioner as the operator of the only vessel in practice
affected by the determination transpires to be the consequence of its choice (which it was
and is not obliged to continue to make) to immerse itself in sandeel fishing to a far greater
extent than its "possessions" (and in particular its FQAs) necessitate.
[43]
Turning to the issue of whether the determination has an excessive impact on the
petitioner, it appears to be the case that it has made capital investment to put itself into the
position of being able to fish for sandeel, particularly in acquiring and maintaining the
appropriate gear for its vessel. However, it was not made clear quite what that investment
amounted to, when it was made, or the extent to which it may have been depreciated over
time. That makes it difficult to place much weight on that feature of the case. Likewise,
although the determination amounts to a total prevention of sandeel fishing, that is in
consequence of a control on its use of the petitioner's possessions rather than of an
expropriation of them and, further, sandeel fishing is very far from being the sum and
substance of the petitioner's undertaking, contributing only a relatively modest amount to
its catch, which largely consists of mackerel and herring unaffected by the determination
complained of.
[44]
So far as the question of compensation (or at least mitigation of the consequences of
the determination) is concerned, while there have been cases of apparent similarity to the
present where the provision of compensation has been regarded as significant to the
conclusion that there had been no breach of A1P1 rights - in particular, Posti and Rahko v
Finland (2002) 37 EHRR 6 - it is clear that A1P1 gives no general expectation of compensation
for adverse effects and that its provision, as with the provision of alternative mitigatory
31
measures such as phased introduction of a ban or the allocation of quota in an alternative
catch, will ordinarily fall within the wide margin of discretion in the imposition of necessary
environmental controls enjoyed by national authorities - see, eg, Mott at [37]. In other
words, if the Secretary of State considers, on the basis of a body of evidence which had
grown and consolidated over a period of time, that a particular activity is harming the
environment, or is probably doing so, it may prove very difficult to fault a conclusion on his
part that it should be prevented completely at once and without mitigations, even if a
different and equally reasonable conclusion might have been reached. Counsel for the
Secretary of State again suggested in the context of compensation that other coastal states
might be discouraged from banning commercial sandeel fishing if they felt that such a move
would, for legal or practical reasons, require to be attended by compensatory measures, but
in the absence of any evidence at all in support of that suggestion, I place no weight on it.
Likewise, the suggestion that any loss suffered by the petitioner as a result of the removal of
its ability to fish for sandeel might in due course be made up for by increased quota in other
stocks being made available as a consequence of the UK's increasing post-Brexit access to
such stocks appears to me to be far too speculative to receive any weight.
[45]
Gathering these various considerations in the final balance, I conclude that the
Secretary of State's 2022 determination which is complained of may properly be regarded as
a modest but meaningful contribution to valuable maritime conservation and ecological
goals. Even having full regard to its modest nature, its effect on the petitioner is not
disproportionate or excessive for the reasons already stated. Lack of compensation for, or
equivalent mitigations of, the closure of the fishery is in those circumstances an outcome
which is within the wide margin of appreciation afforded in this area to national authorities.
32
[46]
It follows that the Secretary of State's 2022 determination is not struck at by A1P1
considerations, and that the declarator to that effect sought by the petitioner must be
refused. Likewise, there is no basis for supposing that the 2023 determination may be
attended by any unlawful character arising out of A1P1 and thus no reason for the court to
seek to control its terms on that account. Had matters been otherwise, I would not have
permitted the various technical and procedural objections advanced on behalf of the
Secretary of State to stand in the way of effective regulation of the 2023 determination.
Timing
[47]
It will finally be recalled that a separate criticism made of the Secretary of State was
that his 2022 determination was issued on 6 July 2022, by which time the period during
which sandeel could as a matter of practicality be caught for commercial purposes in 2022
had either expired or at any rate was virtually at an end. The Secretary of State's response to
that complaint, shorn of its circumlocutions, was essentially that it did not matter when the
determination was issued, so long as it was in its substance a lawful determination. That
position cannot be accepted. It has been recognised at least since the decision of the House
of Lords in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997,
[1968] 2 WLR 924 that statutory powers fall to be exercised in a way which promotes the policy and
objects of the legislation which confers them. The power conferred on the Secretary of State
by section 23 of the Fisheries Act 2020 to "determine ... the maximum quantity of sea fish
that may be caught by British fishing boats" during a particular period cannot sensibly be
read as contemplating in any ordinary circumstances a delay in the issue of such a
determination to a point in time when that which it designed to facilitate and regulate,
namely the commercial exploitation of a stock of fish, is no longer practically possible.
33
[48]
While the Secretary of State's response to the criticism raised is accordingly entirely
misplaced, there is nonetheless a good answer to that criticism, which is that a provisional
determination under section 23 in respect of sandeel quota for 2022 was in fact was made
much earlier than July 2022, in that an initial determination (of zero) was made as early as
29 December 2021. While that was said to be subject to review (which is lawful in terms of
section 6(a)(ii) of the 2020 Act), and while the petitioner may have hoped meantime that it
would be reviewed upwards, it served as the operative determination until its final
confirmation in July 2022, nearly four months after the UK/EU consultations in relation to
sandeel quota for 2022 finished in agreement on 11 March. The complaint about the timing
of the final determination in 2022 accordingly fails on the facts, rather than in consequence
of the Secretary of State's response in point of law to it. The relative declarator sought by the
petitioner falls to be refused.
Conclusion
[49]
For the reasons stated, I shall sustain the respondent's fifth plea in law, repel the
petitioner's pleas, and refuse the prayer of the petition. While it is not possible to afford the
petitioner any of the substantive remedies it seeks, various features of what happened in the
course of the determination process make it easy to understand why it felt constrained to
raise these proceedings. Questions also arise about some aspects of the Secretary of State's
response to the issues raised in the petition. It may be that these matters will fall to be
reflected appropriately in the disposal of any motion that may be made in respect of the
expenses of the process.
