Introduction

The case, Petition of the Open Seas Trust for Judicial Review of a Decision by Scottish Ministers ([2023] CSOH 39), adjudicated by the Scottish Court of Session on June 23, 2023, addresses the compliance of Scottish Ministers with the National Marine Plan (NMP) during the variation of sea fishing licenses. The petitioner, the Open Seas Trust, a charity dedicated to marine conservation, challenged a decision by Scottish Ministers to alter sea fishing licenses without directly considering the NMP, relying instead on statutory instruments (SSI). The core issue revolved around whether the Ministers' approach adhered to the statutory requirement to act "in accordance with" the NMP as stipulated in the Marine (Scotland) Act 2010.

Summary of the Judgment

The Court, delivered by Lord Braid, concluded that the Scottish Ministers' decision to vary sea fishing licenses without directly considering the NMP was unlawful. The respondent, Marine Scotland, attempted to justify their approach by asserting that implementing the plan through SSI sufficed. However, the Court emphasized that section 15 of the Marine (Scotland) Act 2010 mandates public authorities to take authorization decisions in alignment with the NMP, not merely through a long-term strategy or indirect implementation methods. Consequently, the Court disposed of the petition, declaring the decision unlawful to the extent that it failed to consider the NMP directly.

Analysis

Precedents Cited

The judgment referenced several key precedents:

• R (Powell) v The Marine Management Organisation [2017] EWHC 1491 (Admin): This case highlighted the necessity for public authorities to "grapple with" relevant plans when making decisions, drawing parallels with town and country planning.
• Tiviot Way Investments Ltd v Secretary of State for Communities and Local Government and Another [2015] EWHC 2489 (Admin): Emphasized that decision-makers must assess conformity with development plans as a whole, rather than through a mechanistic application of every policy.
• R (SB v Governors of Denbigh High School [2007] 1AC 100: Discussed substantial compliance with Convention rights, drawing a loose analogy to the consideration required under the Marine Act.
• R (on the application of Swire) v Canterbury City Council [2022] JPL 1026: Reinforced that "in accordance with" signifies harmony with a plan, not exact conformity.

These precedents collectively underscored the importance of integrating strategic plans into decision-making processes, ensuring that authorities do not bypass direct consideration of such plans.

Legal Reasoning

The Court focused on the interpretation of "in accordance with" as stipulated in section 15(1) of the Marine (Scotland) Act 2010. It concluded that:

• The respondent’s reliance on SSI to implement the NMP indirectly does not fulfill the statutory requirement to consider the NMP directly during authorization decisions.
• The duty under section 15 mandates a proportionate consideration of the NMP in each authorization decision, not merely a general alignment through strategic instruments.
• The respondent's argument that a long-term strategy negated the need for direct consideration was insufficient, as the legislative intent clearly requires the plan to inform each relevant decision.

The Court dismissed the respondent's analogies to Convention rights and routine decision-making, emphasizing that statutory duties must be adhered to regardless of decision complexity or frequency.

Impact

This judgment establishes a critical precedent for public authorities in Scotland, reinforcing the necessity to directly incorporate strategic plans like the NMP into authorization decisions. Future implications include:

• Mandating direct consideration of marine plans in licensing and other environmental decisions.
• Potential challenges against public authority decisions that rely solely on indirect implementation methods.
• Encouraging more transparent and accountable decision-making processes within environmental and fisheries management sectors.

Moreover, this case may influence legislative reviews and the drafting of regulatory frameworks to ensure statutory compliance in environmental governance.

Complex Concepts Simplified

Bottom-Trawling: A fishing method that involves dragging heavy nets across the sea floor, which can cause significant habitat destruction.

Statutory Instrument (SSI): A form of legislation that allows provisions of an Act of Parliament to be subsequently brought into force or altered without Parliament having to pass a new Act.

Priority Marine Features (PMFs): Specific marine habitats identified as requiring protection due to their ecological importance and vulnerability.

National Marine Plan (NMP): A strategic framework guiding the sustainable development and conservation of marine resources within Scotland's jurisdiction.

Authorization Decision: A decision made by public authorities granting permission for specific activities, in this context, the variation of sea fishing licenses.

Conclusion

The Court's decision in [2023] CSOH 39 underscores the imperative for public authorities to directly engage with strategic plans like the NMP when making authorization decisions. By declaring the respondent's approach unlawful, the judgment reinforces the legal obligation to integrate comprehensive marine conservation strategies into daily regulatory practices. This pivotal ruling not only fortifies the protections for marine habitats but also sets a benchmark for accountability and adherence to statutory mandates within environmental governance.

Stakeholders, including government bodies and environmental organizations, must now navigate licensing and regulatory frameworks with a heightened awareness of their duties to explicitly consider overarching plans, ensuring that sustainable and legally compliant practices are upheld.