Introduction

The case of Scottish Fishermen's Organisation Ltd and Another for Judicial Review of a Decision by the Scottish Ministers ([2024] ScotCS CSOH_27) was adjudicated by the Outer House of the Scottish Court of Session on March 8, 2024. The petitioners, representing pelagic fishermen organizations, challenged the Scottish Ministers' decision to amend sea fishing licence conditions effective January 1, 2023. While the aim to increase pelagic fish landings in Scotland was not contested, the petitioners advocated for voluntary measures over regulatory licence changes. This comprehensive commentary delves into the court's reasoning, the legal precedents cited, and the broader implications of this landmark judgment.

Summary of the Judgment

The Scottish Court of Session, presided over by Lord Ericht, dismissed the petition for judicial review. The petitioners challenged the Scottish Ministers' amendment to the "real economic link" conditions of sea fishing licences, arguing breaches of Article 1 Protocol 1 of the European Convention on Human Rights (ECHR), improper use of statutory power, unfair consultation processes, and failure to consider relevant factors. The court found that the respondents acted within their legal authority under the Fisheries Act 2020, appropriately considered economic detriments, processing capacities, and market impacts, and conducted a fair consultation process. Consequently, the decision to uphold the amended economic link conditions was affirmed.

Analysis

Precedents Cited

The judgment referenced several key legal precedents to substantiate its findings:

• Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997: Established that statutory powers must be exercised for their intended purpose, rejecting the use of power for ulterior motives.
• R (Wright) v Forest of Dean District Council [2019] UKSC 53: Emphasized strict interpretation of statutory powers, ensuring they align with legislative intent.
• Brightcrew Ltd v City of Glasgow Licensing Board [2011] CSIH 46: Highlighted that licensing authorities cannot impose conditions outside their core functions.
• R (Palestine Solidarity Campaign) v Secretary of State for Housing, Communities and Local Government [2020] 1 WLR 1774: Articulated that statutory powers must align with legislative objectives and purpose.
• R (Guernsey) v Secretary of State for the Environment [2016] EWHC 1847 (Admin): Discussed the concept of 'victim' under ECHR rights, expanding it to associations representing members.

These precedents fortified the court's stance that the Scottish Ministers' actions were within legal bounds and adhered to both the letter and spirit of the Fisheries Act 2020.

Legal Reasoning

The court's legal reasoning was anchored in a comprehensive interpretation of the Fisheries Act 2020. Key points include:

• Scope of Statutory Powers: Schedule 3 of the Fisheries Act 2020 grants broad authority to attach conditions to sea fishing licences, including economic link conditions not directly related to fishing activities. The court held that these powers are intended to further the Act's objectives, notably the national benefit objective, which mandates that fishing activities yield social or economic benefits to the UK.
• Proper Purpose: The petitioners argued that the economic link conditions pursued economic rather than regulatory objectives. The court refuted this by interpreting the Act holistically, asserting that economic benefits are intrinsic to the regulation of fisheries under the Act's objectives.
• Fair Consultation: Despite the petitioners' claims of an unfair consultation process due to a five-year gap and material changes like Brexit and COVID-19, the court found that the two-tiered consultation (2017 and Further Consultation in 2022) sufficiently addressed these changes. The inclusion of transitional measures and opportunities for representations reinforced the fairness of the process.
• Proportionality: The economic detriment to the petitioners' members was weighed against the national economic benefits. The court concluded that the financial impact on individual vessels was proportionate to the broader economic gains anticipated for Scotland's fishing and processing sectors.
• Human Rights Consideration: The court acknowledged that the economic link conditions interfered with the petitioners' property rights under Article 1 Protocol 1. However, it determined that this interference was justified, proportionate, and within the scope of lawful state action aimed at public interest objectives.

The court effectively balanced individual rights against collective economic interests, reaffirming the validity of the Scottish Ministers' regulatory measures.

Impact

This judgment has several significant implications for future cases and Scottish fisheries law:

• Affirmation of Broad Regulatory Powers: The court's decision underscores the expansive interpretation of statutory powers under the Fisheries Act 2020, especially concerning economic link conditions. This sets a precedent for future regulatory changes aiming to balance economic interests with sustainable fisheries management.
• Recognition of Associations as 'Victims': By acknowledging producer organizations as 'victims' under ECHR rights, the judgment broadens the scope for associations to challenge governmental decisions on behalf of their members. This could lead to more collective legal actions in similar contexts.
• Consultation Standards: The affirmation of the adequacy of the consultation process, even with significant time gaps and material changes, provides guidance on what constitutes fair and lawful consultation in administrative decisions.
• Economic Considerations in Regulatory Decisions: The judgment emphasizes the necessity of economic impact assessments in regulatory amendments, ensuring that such decisions contribute positively to national economic objectives while maintaining fair treatment of affected parties.

Overall, the judgment reinforces the legitimacy of comprehensive regulatory frameworks that seek to optimize national economic benefits within the fisheries sector, while providing clear judicial support for such measures when appropriately justified and implemented.

Complex Concepts Simplified

Economic Link Licence Condition

The economic link licence condition pertains to the requirements that sea fishing licence holders must meet to demonstrate a genuine economic connection to Scotland. Originally, this could be achieved through various means, such as landing a certain percentage of catch in UK ports, employing UK-based crew, or incurring operating expenses in the UK. The amendment removed alternative routes, mandating higher landings within Scotland to ensure economic benefits stay local.

Judicial Review

Judicial review is a legal process where courts examine the lawfulness of decisions or actions taken by public bodies. In this case, the fishermen organizations sought judicial review to challenge the Scottish Ministers' amendments to licence conditions.

Article 1 Protocol 1 of the ECHR (A1P1)

A1P1 safeguards individuals' rights to the peaceful enjoyment of their possessions. Any interference, like altering licensing conditions that affect businesses, must align with lawful conditions outlined in the Convention and be proportionate to legitimate public interests.

Proportionality

Proportionality in legal terms assesses whether the benefits of a governmental measure sufficiently outweigh its adverse effects on individuals' rights. The court evaluated whether the economic benefits to Scotland justified the financial burdens imposed on fishermen.

Margin of Appreciation

This principle allows authorities some leeway in how they implement policies, recognizing that courts may not always achieve the nuanced balance policymakers intend. The judgment acknowledged that Scottish Ministers had discretion in weighing economic benefits against fishermen's interests.

Conclusion

The Scottish Court of Session's judgment in Scottish Fishermen's Organisation Ltd and Another serves as a pivotal affirmation of the Fisheries Act 2020's broad regulatory authority. By upholding the amended economic link licence conditions, the court underscored the legitimacy of balancing economic imperatives with sustainable fisheries management. This decision not only reinforces the legal framework governing Scottish fisheries but also expands the recognition of associations' rights under human rights law. As such, it sets a foundational precedent for future regulatory adjustments and collective legal actions within the maritime and broader regulatory sectors.