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Scottish Creel Fishermen’s Federation v. Scottish Ministers

Stable member Michael Upton represented the successful petitioner for judicial review in Scottish Creel Fishermen’s Federation v. Scottish Ministers. On Friday 8th January 2021 the Court of Session gave judgment, upholding the Federation’s challenge to the Ministers’ treatment of the proposed Inner Sound of Skye Inshore Fisheries Pilot. The Ministers had invited proposals from the fishing industry for 2-year trials of new regulations in inshore waters so that areas for ‘mobile’ fishing - trawling and dredging - would be separated from areas for ‘static’ fishing - using creels and lobster-pots. The ministerial Guidance said that proposals would be considered on the basis of five specific criteria. In October 2018 the Federation’s members who fish for prawns with creels in the Inner Sound submitted a proposal to divide it into two such zones. Studies suggest that catching prawns over a certain size selectively in creels and throwing back alive anything that is too small or the wrong species, is better for marine environment and also more productive economically than dragging the sea-bed with less discriminating trawl nets, which require discarding a large proportion of what is caught and throwing it back dead into the sea.

The Ministers held a public consultation. On February 2020 they issued a report deciding not to implement the proposal. The only reason given was that there was opposition to it. The existence of opposition was not one of the ministerial criteria in the Guidance.

Lady Poole has held the decision unlawful, because the Ministers should have judge the proposal against the published criteria, not according to whether it was opposed it. The Court held that the Ministers’ decision was based on irrelevant considerations, breached legitimate expectations and was Wednesbury unreasonable.

Parties are to consider the remedy which the Court will grant but it may be expected to entail a complete re-consideration of the Inner Sound proposal.