Introduction

The case of Salmon Net Fishing Association of Scotland and Others v Scottish Ministers and Marine Scotland ([2020] CSOH 11) presented before the Scottish Court of Session examines the legality of the Scottish Ministers' decision to continue prohibiting the retention of salmon caught in coastal waters under regulation 3 of the Conservation of Salmon (Scotland) Regulations 2016, as amended by the 2019 Regulations. The petitioners, representing proprietors and lessees of heritable salmon net fishing titles, challenged the compensation scheme introduced alongside the prohibition, arguing it was arbitrary and violated their rights under Article 1 of the First Protocol to the European Convention on Human Rights (A1P1).

Summary of the Judgment

The Court of Session, presided over by Lord Pentland, conducted a substantive hearing on the matter. The primary contention from the petitioners was that the 2019 compensation scheme was inadequate, failing to fairly compensate the loss of property rights resulting from the indefinite prohibition on retaining salmon. They argued that the scheme did not proportionately balance their economic interests against the broader environmental concerns.

However, the Court found in favor of the Scottish Ministers, concluding that the compensation scheme was both rationally based and within the Ministers' legislative competence. The Court emphasized the importance of environmental conservation and upheld the Ministers' discretion, noting that the compensation was designed to allow affected parties to dispose of their interests and diversify operations without imposing an excessive burden.

Analysis

Precedents Cited

The Judgment extensively referenced key precedents to contextualize the legal framework:

• Hutten-Czapska v Poland (2007) 45 EHRR 4: Emphasized that any interference with property rights must pursue a legitimate aim and maintain proportionality.
• R (Mott) v Environment Agency [2018] 1 WLR 1022: Highlighted that environmental conservation measures can justify restrictions on property rights if they do not impose disproportionate burdens.
• Alatulkkila v Finland (2006) 43 EHRR 34: Affirmed that national authorities have a wide margin of appreciation in environmental regulation.
• O'Sullivan McCarthy Mussel Development v Ireland (2018) EU: 44460/16: Reinforced the prioritization of environmental protection and the corresponding discretion afforded to states.

Legal Reasoning

The Court applied the principles of A1P1 to determine whether the interference with the petitioners' property rights was justified. It scrutinized whether the Scottish Ministers' actions served a legitimate aim—in this case, environmental conservation—and whether the measures taken were proportionate.

Lord Pentland articulated that the key consideration was the balance between individual property rights and the general interest of environmental protection. The Court recognized the Ministers' obligation to comply with EU directives regarding salmon conservation and acknowledged the scientific evidence supporting the necessity of the prohibition.

The compensation scheme was evaluated based on its structure and intent. The Court deemed the scheme reasonable, noting that it was tailored to address both active and dormant title holders, provided a substantial compensation period, and preserved the possibility of future exploitation of heritable titles should the prohibition be lifted.

Impact

This Judgment reinforces the broad discretionary power of governmental authorities in environmental conservation efforts, especially when aligned with international obligations. It sets a precedent affirming that compensation schemes, even if not fully satisfying all affected parties, can be deemed lawful and fair if they are rationally constructed and proportionate to the aims pursued.

For future cases, this decision underscores the deference courts may afford to executive bodies in environmental regulation, thereby influencing how similar disputes between property rights and conservation imperatives are adjudicated.

Complex Concepts Simplified

Article 1 of the First Protocol to the European Convention on Human Rights (A1P1)

A1P1 protects the right to peaceful enjoyment of one's possessions. It restricts the state from depriving individuals of property without lawful, justified reasons, ensuring that any interference is proportionate and serves a legitimate aim.

Margin of Appreciation

This doctrine allows national authorities a degree of discretion in how they implement and enforce human rights, recognizing that domestic authorities are better placed to evaluate local needs and conditions.

Proportionality

Proportionality assesses whether the measures taken by the state are balanced against the objectives sought. It ensures that the means employed are appropriate and not excessively burdensome relative to the intended positive outcomes.

Conclusion

The Salmon Net Fishing Association v Scottish Ministers Judgment serves as a pivotal affirmation of governmental authority in balancing individual property rights with critical environmental conservation efforts. By upholding the Ministers' compensation scheme, the Court underscored the legitimacy of regulatory measures aimed at safeguarding ecological integrity, even when such measures impose significant restrictions on established property rights. This decision not only clarifies the application of A1P1 within the context of environmental law but also provides a benchmark for evaluating the fairness and proportionality of future conservation-related regulatory actions.