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SLN Lawyer of the Month Michael Upton

The following article is published in SLN 9 February 2021:

Fishing rights may have been one of the main sticking points of the Brexit negotiations, but not all recent fish-related battles have been waged between Britain and Brussels. In a case that played out much closer to home, the Scottish Creel Fishermen’s Federation (SCFF) challenged the Scottish Government in the Court of Session over its decision to reject a fisheries pilot off the Isle of Skye. Lady Poole handed victory to the federation last month and, with the government indicating its reluctance to reconsider the scheme, has warned she will force it to act on her judgment if necessary.

 

If it sounds familiar that is because in many ways it is. As the creel fishermen’s advocate Michael Upton explains, just like the Brexit-era fishing debate, at its heart this case was all about determining who has the right to fish where.

“It really goes back to the 19th century, when fishing was localised,” he explains. “People would come out of their own harbours and, on the whole, would fish in their own waters.

 

“Then you got steam trawlers coming along in the 1870s and hoovering everything up. A law was passed that meant they couldn’t trawl within three miles of the coast and that lasted for about 100 years.

 

“By the 1970s the trawlermen were saying that there wasn’t much out there any more so could they come in and get what’s within those three miles.”

 

As a result, the Inshore Fishing (Scotland) Act of 1984 essentially abolished the three-mile limit, leading to concerns not just about over-fishing but about damage to the seabed too. When governmental body Marine Scotland sought ideas for pilot fisheries projects in 2017, the creel fishermen saw it as an ideal opportunity to address those issues head on. They suggested trialling a return to a localised approach for prawn fishing off the coast of Skye but, despite promising that all pilot proposals would be considered based on five key criteria, government ministers dismissed their idea on the grounds it had been opposed. This, Mr Upton argued in court, was the wrong approach.

 

“That’s what was judicially reviewed,” Mr Upton says. “The report that was issued simply said there was opposition to the proposal and that was the reason for rejecting it; there was no assessment from the ministers themselves on the merits of the proposal. The judge said that wasn’t good enough, they have to reconsider.”

 

Government ministers have indicated that they see little point in reconsidering the proposal now given the time that has elapsed since it was first drafted and the fact a new fisheries management strategy for 2020 to 2030 has come into force. Despite this, and despite the fact that reconsidering the proposal would not necessarily lead to it being given the go-ahead, Mr Upton says its contents consider wider recognition. This, he says, is because it contains the SCFF’s argument about the sustainability of the seas being just as important as fishermen’s livelihoods.

 

“You can compare and contrast the two ways of fishing,” he says. “If you trawl for prawns you do a lot of damage to the seabed and you catch everything that’s in front of you, whether it’s prawns or not. They throw back about a third of the catch and they throw it back dead because it’s been suffocated in the net.

 

“Creel fishermen put down creels. The creel does no harm to anything round about it, only what’s caught in it and they can grade the size of the aperture and put in an escape hatch so juveniles can get out again. The creel guys very much see themselves as husbanding a resource.”

 

The fact the federation was able to secure a protective expenses order on environmental grounds shows that the judge who awarded that order – Lord Burns – agreed the case turned on the sustainability argument. Yet Mr Upton says that, in general, too little is known or considered about what goes on in the waters around Scotland and how that affects the wider ecosystem. That, he says, is something he hopes the SCFF’s case will have drawn attention to.

 

“There’s not been much litigation that has drawn attention to what is going on in the in-shore waters,” he says. “If it was going on on land it would be devastating and no one would put up with it for a week. If people only knew, they wouldn’t tolerate it.”

 

Mr Upton is talking from experience. Prior to being instructed by the creel fishermen he knew little about what goes on in Scotland’s in-shore waters himself, though he has worked closely with membership organisation Fish Legal – of which the SCFF is a member – on a number of unrelated matters in the past.

 

“Fish Legal is a body that represents freshwater fisheries’ interests and some sea fisheries’ interests,” he says. “They have a small team and just one in Scotland – Robert Younger – who I have done some work for in the past in respect of pollution of the River Devon in Clackmannanshire. Scottish Water had put 12,000 litres of acid in the water, which did five years’ worth of damage to the fishery. We won that case.”

 

It is a niche area of a diversified practice that covers everything from tax litigation and disputes over the leasing of land for mobile phone masts to cases involving payment protection insurance and personal injury. In spite of the varied focus, the environmental theme that runs through all his fishing-related work is close to Mr Upton’s heart, with much of his spare time taken up with planting trees on a piece of land he has rented for the past 30 years on the Isle of Muck – something the ongoing lockdown has prevented him from attending to for much of the past year.

 

“I rent a blackhouse in the Hebrides – I worked on a farm there when I was a student and since then the farmer has rented me a tumbledown bothy,” he says. “He lets us plant trees. We’ve panted two woods to date, which have done okay, and we’re plotting to plant some Atlantic hazel. As far as I’m concerned, for me lockdown ending is all about getting out to plant those trees"