Introduction

The case of Scottish Fishermen's Organisation Ltd and Another v Scottish Ministers ([2023] ScotCS CSOH_2) presents a pivotal judicial review concerning amendments to the economic link conditions under Scottish sea fishing licenses. The petitioners, representing pelagic fishermen through organizations such as the Scottish Fishermen's Organisation Limited and Shetland Fish Producers Organisation Limited, challenged the Scottish Ministers' decision to modify the conditions under which sea fishing licenses operate, effective from January 1, 2023.

The central issue revolves around the Scottish Government's decision to strengthen the economic link requirements, primarily focusing on the percentage of fish landings within Scotland and the removal of alternative compliance options previously available to fishermen. The petitioners argue that these changes adversely affect their members' economic interests and violate principles of fair consultation and legitimate expectation.

Summary of the Judgment

The Scottish Court of Session's Outer House, presided over by Lord Ericht, addressed the petitioners' urgent request for an interim interdict—essentially a temporary injunction—to halt the implementation of the new economic link conditions until a full hearing could be conducted. The court evaluated the petitioners' arguments across six grounds, including breaches of human rights, legitimate expectation, improper use of statutory power, unfair consultation processes, failure to consider relevant factors, and irrationality.

While the court recognized prima facie cases on several grounds, it ultimately denied the interim interdict. The decision hinged on the balance of convenience, where the potential prejudices to the respondents (Scottish Ministers) and third parties (such as processors and other fishers) outweighed the immediate harms to the petitioners. Consequently, the Scottish Government was permitted to proceed with amending the economic link conditions as scheduled.

Analysis

Precedents Cited

The judgment referenced several key precedents that influenced the court's reasoning:

• Tr Traktörer AB v Sweden (1989) 13 EHRR 309: Established that possession of a license can constitute a protected property interest under Article 1 of Protocol 1 of the European Convention on Human Rights (ECHR).
• O'Sullivan & McCarthy Mussel Development Ltd v Ireland (App No 44460/16): Clarified the scope of rights organizations can assert on behalf of their members.
• AXA General Insurance Co v Lord Advocate [2011] UKSC 46: Discussed the balance between individual rights and public interest in proportionality assessments.
• In re Gallagher [2019] UKSC 3: Addressed the implications of public law failures on the legality of governmental decisions.
• United Policyholders Group v AG of Trinidad and Tobago [2016] UKPC 17: Considered the binding nature of concordats and similar agreements on third parties.
• R (Mott) v Environmental Agency [2018] UKSC 10: Explored the necessity of considering individual claimant interests even when broad regulatory powers are exercised.
• School & Nursery Milk Alliance v Scottish Ministers: Highlighted the necessity for fair consultation processes when significant regulatory changes are proposed.

Legal Reasoning

The legal reasoning of the court was multifaceted, addressing each ground with careful consideration:

1. Breach of Article 1 Protocol 1 of the ECHR

The petitioners contended that the new economic link conditions interfered unlawfully with their property rights by imposing stricter licensing conditions without just cause. The court acknowledged a prima facie case but deferred a full assessment to the substantive hearing, recognizing the need to evaluate proportionality and fair balancing of interests.

2. Breach of Legitimate Expectation

The petitioners argued that the Concordat established a legitimate expectation that economic link conditions would remain consistent across the UK. However, the court found insufficient grounds for this claim, noting that concordats are not legally binding and that significant policy shifts (like Brexit) could supersede such expectations.

3. Statutory Power Used for an Improper Purpose

The assertion was that the Scottish Ministers overstepped by attaching economic conditions not directly related to fishing. The court identified a prima facie case, recognizing the ambiguity in interpreting the breadth of statutory powers under the Fisheries Act 2020, necessitating further examination.

4. Unfair Consultation Process

The lengthy delay between consultations (2017 to 2022) and significant material changes during this period were highlighted as potential flaws in the consultation process. The court identified a prima facie case but noted that a detailed review of the consultation's fairness would be required in the substantive hearing.

5. Failure to Take Account of Relevant Considerations

The petitioners claimed that the Scottish Government neglected critical factors, such as economic impacts and processing capacity. The court found merit in this argument, recognizing it as a prima facie case pending detailed factual analysis in future hearings.

6. Irrationality

The claim that the decision was irrational and not reasonably achievable was acknowledged as having a prima facie case. However, the court deferred judgment pending a substantive review of the factual underpinnings.

Impact

This judgment underscores the stringent standards courts apply in interim relief applications, particularly balancing immediate prejudicial effects against broader public and third-party interests. It sets a precedent for how regulatory changes, especially in sectors vital to local economies like fisheries, must navigate legal expectations and consultation fairness.

Future cases involving regulatory amendments will likely reference this judgment when assessing the adequacy of consultations and the balancing of economic interests with individual or group rights. Additionally, it emphasizes that while economic considerations are paramount, they must be weighed against the procedural fairness and proportionality of government actions.

Complex Concepts Simplified

Conclusion

The judgment in Scottish Fishermen's Organisation Ltd v Scottish Ministers serves as a critical examination of how regulatory changes are scrutinized under judicial review, particularly regarding economic conditions tied to licensing. While the court recognized several prima facie cases challenging the Scottish Government's decision, the balance of convenience ultimately favored allowing the changes to proceed pending a full hearing.

This case highlights the importance of timely and fair consultation processes, the limitations of legitimate expectations in dynamic policy environments, and the rigorous standards courts apply when balancing economic interests with legal rights. Stakeholders in regulated industries can glean valuable insights into the judicial expectations surrounding government decision-making processes, emphasizing the need for transparency, fairness, and proportionality in policy amendments.