Scottish Government body 'acted unlawfully' in fishing licence row

Open Seas, a charity working to protect the marine environment, sought a judicial review of the Marine Scotland decision involving vessels dragging nets along the seabed to gather catches, arguing it was not taken in accordance with the Scottish Government’s National Marine Plan (NMP).

The document is supposed to ensure the government body incorporates protection for the marine environment in its decision making, but Open Seas argued in the Court of Session that last December’s decision was taken without considering its effect on species and habitats classed as Priority Marine Features.

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James Findlay KC said at the conclusion of the judicial review hearing that the charity was seeking a ruling from Lord Braid that would require Marine Scotland to take more account of the NMP in all its future decisions to vary sea fishing licences.

A written ruling has now been published in which Lord Braid points out the Marine Scotland Act 2010 “expressly requires” the organisation “to take any authorisation decision in accordance with the NMP” and concludes last year’s decision was “unlawful”.

The ruling said: “The short issue for determination in this judicial review is whether, in taking decisions to vary conditions attached to sea fishing licences in terms of powers accorded to it by the Fisheries Act 2020, the respondent must have regard to the NMP.

“The petitioner, a charity whose purposes include the conservation and the environmental protection of marine species in the waters and seas surrounding the UK, argues that it must.

“The respondent disputes that: its position is that its approach of achieving the purposes of the plan through statutory instrument (SSI) is sufficient compliance with its statutory duty to act in accordance with the NMP, and that it need not take the plan into account when making individual decisions regarding sea fishing licences, of which there are many.

“Since the respondent admittedly did not consider the plan or its policies in taking the decision complained of, that is sufficient to dispose of the petition.

“For all these reasons, I have concluded that since the respondent did not consider the NMP in making the licensing variations complained of, the decision of December 30, 2022 is unlawful at least to that extent.”

Director of Open Seas Phil Taylor welcomed the judgment, saying: “This decision is a major win for environmental justice and everyone who has campaigned to protect our seas for many years, divers who have seen the problem with their own eyes and those within communities who have bravely spoken out, including many fishermen.

“But it is a hollow victory, because whilst it shows we were right to make this challenge, it reveals that the Scottish Government has been unlawfully neglecting its legal duty to protect our seas for the last eight years.

“Marine Scotland has effectively been endorsing and sanctioning harm to our marine environment during this time.

“The NMP requires environmental protection to be mainstreamed into decision-making about fishing and this judgment reaffirms that.

“Damaging fishing methods like scallop dredging and bottom-trawling have the most widespread impact of any human activity in our sea. Our seabed and fish stocks are being degraded and depleted by these damaging fishing methods.

“Marine Scotland argued in court that the routine decisions made about bottom-trawling and dredging didn’t need to consider the NMP and, in particular, the environment. It’s good to see the judge reject this argument.

“Our seas are a public commons and must be managed in the public interest. The Scottish Government must now take urgent steps to protect our seabed to safeguard both the environment and a future for sustainable fishing.”