Introduction

In the recent judicial review case Open Seas Trust v Scottish Ministers ([2024] ScotCS CSIH_9), the Scottish Court of Session addressed a critical issue concerning the adherence of Scottish Ministers to the statutory requirements set forth in the Marine (Scotland) Act 2010. The Open Seas Trust, a charity dedicated to the conservation and environmental protection of marine species around the United Kingdom, challenged the Ministers' variation of fishing licenses related to nephrops (Dublin Bay prawns) and scallops. The pivotal question was whether the Ministers acted in compliance with section 15 of the Marine (Scotland) Act 2010 by considering the National Marine Plan (NMP) during the variation process.

The case underscores the tension between routine administrative decisions and broader environmental policies, highlighting the judiciary's role in ensuring that statutory duties are meticulously followed. The parties involved included the Open Seas Trust as the petitioner, and the Scottish Ministers, represented by legal experts from the Scottish Government Legal Directorate, as the respondents.

Summary of the Judgment

The Court held that the Scottish Ministers acted unlawfully by varying fishing licenses without adequately considering the National Marine Plan as required by section 15 of the Marine (Scotland) Act 2010. The Lord Ordinary, Lord President Lord Pentland, Lord Tyre, and the court concurred that the Ministers' reliance on statutory instruments to implement the NMP fell short of the statutory requirement to take each authorization decision "in accordance with" the NMP. Consequently, the variation notice concerning nephrops and scallops was declared unlawful.

The judgment emphasized that while Ministers may adopt broader schemes for policy implementation, individual authorization decisions must inherently reflect the principles and directives of the NMP unless explicitly justified by relevant considerations. The court dismissed the Ministers' argument that procedural alternatives sufficed for compliance, reinforcing the necessity of direct adherence to the NMP in decision-making processes.

Analysis

Precedents Cited

The judgment referenced several key cases to frame its legal reasoning:

• R (Swire) v Canterbury City Council [2022] JPL 1026 - Highlighted the interpretative meaning of "in accordance with" as implying agreement or harmony rather than strict conformity.
• Tiviot Way Investments v Secretary of State for Communities and Local Government [2016] JPL 171 - Illustrated the judicial approach to evaluating decisions against overarching plans or policies.
• Education Secretary v Tameside MBC [1977] AC 1014 - Discussed the procedural expectations in decision-making processes, particularly the need for authority to acquaint with relevant information.
• R (Powell) v Marine Management Organisation [2017] EWHC 1491 (Admin) - Provided a comparison with town and country planning, supporting the integration of policy adherence in routine decisions.
• R (Mott) v Environment Agency [2018] 1 WLR 1022 and Salmon Net Fishing Association of Scotland v Scottish Ministers [2020] CSOH 11 - Addressed the legal implications of statutory instruments and conformity with European Convention rights.

These precedents collectively reinforced the principle that statutory duties must be interpreted strictly and applied consistently, especially when they concern environmental protection and sustainable development.

Legal Reasoning

The court meticulously dissected the statutory language of section 15 of the Marine (Scotland) Act 2010, emphasizing that "in accordance with" mandates a substantive alignment with the NMP. The Ministers' defense—that statutory instruments could serve as an alternative pathway to implementing the NMP—was deemed insufficient because it circumvented the direct consideration of the NMP in each authorization decision.

The legal reasoning pivoted on the nature of authorization decisions, which inherently affect the marine environment and thus must align with the sustainable development principles outlined in the NMP. The Ministers' reliance on broader regulatory schemes without directly referencing the NMP policies during the variation process was found to neglect their statutory obligations.

Furthermore, the court rejected the Ministers' argument regarding the impracticality of extensive consultations for routine variations. It posited that routine administrative decisions, much like those in town and country planning, do not require exhaustive procedural steps but must still adhere to the substantive policy frameworks established by legislative acts.

Impact

This judgment sets a significant precedent in Scottish administrative law, reinforcing the necessity for government bodies to adhere strictly to statutory policies in their decision-making processes. Specifically, it mandates that:

• Authorization decisions, such as fishing license variations, must directly reflect the mandates of the NMP.
• Broader regulatory schemes or statutory instruments cannot substitute for the direct consideration of relevant policies in individual decisions.
• The judiciary will scrutinize and potentially nullify administrative actions that fail to comply with statutory directives, ensuring accountability.

The ruling is poised to influence future cases involving environmental regulations, licensing processes, and the interpretation of statutory duties, ensuring that sustainability and conservation remain paramount in legislative compliance.

Complex Concepts Simplified

Judicial Review

A judicial review is a legal process wherein courts evaluate the legality of decisions or actions taken by public bodies. It ensures that these bodies act within their lawful authority and adhere to fair procedures.

National Marine Plan (NMP)

The NMP is a strategic framework established under the Marine (Scotland) Act 2010, guiding the sustainable development and conservation of Scotland's marine areas. It sets policies to protect marine environments and regulate activities like fishing to ensure ecological balance.

Section 15 of the Marine (Scotland) Act 2010

This section mandates that any authorization or enforcement decision by public authorities must align with the NMP unless justified by relevant considerations. It underscores the legal obligation to consider environmental plans in decision-making processes.

Statutory Instruments (SSIs)

SSIs are a form of legislation allowing government bodies to make changes to laws without needing to pass a new Act. They are often used to implement or update detailed regulations under the framework of existing laws.

Priority Marine Features (PMFs)

PMFs are species and habitats identified as crucial for conservation. They hold significant ecological importance and are protected under various environmental regulations to maintain marine biodiversity.

Conclusion

The Court of Session's decision in Open Seas Trust v Scottish Ministers ([2024] ScotCS CSIH_9) is a landmark ruling that reinforces the supremacy of statutory policies in administrative decision-making. By declaring the Scottish Ministers' licensing variations unlawful for failing to consider the National Marine Plan, the court has unequivocally affirmed that environmental sustainability mandates cannot be bypassed through alternative procedural mechanisms.

This judgment serves as a crucial reminder to public authorities about the paramount importance of adhering to legislative frameworks. It ensures that environmental protection remains integral to governmental actions, thereby safeguarding marine ecosystems for future generations. Furthermore, the ruling enhances the accountability of public bodies, establishing a clear legal expectation that policies like the NMP must be directly reflected in authorization decisions.

As environmental concerns continue to gain prominence, this case will undoubtedly influence future administrative practices and judicial interpretations, cementing the role of comprehensive policy consideration in the pursuit of sustainable development.