Introduction

The case of Sunbeam Fishing Limited v Secretary of State for Environment, Food and Rural Affairs ([2023] ScotCS CSOH_16) adjudicated by the Scottish Court of Session on February 28, 2023, revolves around the legality of the Secretary of State's determination to prohibit commercial fishing of sandeel by UK-registered vessels in 2022. The petitioner, Sunbeam Fishing Ltd, challenged this decision through a petition for judicial review, asserting that the prohibition was not only unlawful in substance and timing but also violated Article 1 of the First Protocol to the European Convention on Human Rights (A1P1), which safeguards the peaceful enjoyment of possessions.

Summary of the Judgment

Lord Sandison delivered the judgment, holding that the Secretary of State's determination to prohibit sandeel fishing did not violate A1P1. The court acknowledged the petitioner’s economic interests in sandeel fishing but determined that the environmental objectives pursued by the Secretary of State were legitimate and proportionate. The prohibition affected only a small portion (approximately 2.8%) of the Total Allowable Catch (TAC) agreed upon between the UK and the EU. The court found that while the determination imposed an interference with the petitioner's possessions, the impact was not excessive or disproportionate in light of the environmental benefits intended. Additionally, the timing of the determination did not render it unlawful, as it was made within the regulatory framework and prior negotiations.

Analysis

Precedents Cited

The judgment extensively referenced landmark cases to elucidate the interpretation of "possessions" under A1P1 and the proportionality of governmental interference:

• UK Association of Fish Producer Organisations v Secretary of State for Environment, Food and Rural Affairs [2013] EWHC 1959 (Admin): Established that economic interests connected with running a business qualify as "possessions".
• R (Mott) v Environment Agency [2018] UKSC 10: Emphasized the necessity of assessing the proportionality of interference with possessions.
• Axa General Insurance Ltd v Lord Advocate [2011] UKSC 46: Set out the principles for determining legitimate interference with possessions, including the margin of appreciation.
• O'Sullivan McCarthy Mussel Development Ltd v Ireland (App. 44460/16): Discussed the proportionality and balance between public interest and individual rights.

These precedents collectively informed the court's approach to evaluating whether the Secretary of State's actions were lawful and proportionate under A1P1.

Legal Reasoning

The court's legal reasoning was structured around evaluating whether the determination constituted a legitimate interference with the petitioner's possessions and whether such interference was proportionate to the environmental objectives pursued. Key points in the reasoning included:

• Definition of Possessions: The court affirmed that Fixed Quota Allocation Units (FQAs), used by the petitioner to fish sandeel, qualify as "possessions" under A1P1 due to their marketable economic value and role in the business operations.
• Nature of Interference: Determining that the prohibition on sandeel fishing amounted to a control over the use of possessions, specifically the MFV Sunbeam vessel and associated gear, thus interfering with the petitioner's economic interests.
• Proportionality Assessment: Balancing the environmental benefits of restricting sandeel fishing against the economic detriment to the petitioner. The court noted that the prohibition affected a minor portion of the TAC and had measurable environmental benefits, albeit limited.
• Margin of Appreciation: Recognizing the Secretary of State’s discretion in environmental regulation, the court deferred to the expertise and policy considerations of the decision-maker.
• Timing of Determination: Addressing the petitioner's concern about the late issuance of the prohibition, the court found that the provisional determination was timely within the regulatory process and did not render the determination unlawful.

The cumulative effect of these reasoning elements led the court to uphold the Secretary of State’s determination as lawful and proportionate.

Impact

This judgment has significant implications for the intersection of environmental regulation and property rights within the UK:

• Reaffirmation of Regulatory Discretion: The court upheld the broad margin of appreciation afforded to governmental bodies in making environmental policies, reinforcing the authority to balance economic and ecological interests.
• Clarification on "Possessions": By recognizing FQAs and related economic interests as "possessions," the judgment clarifies the scope of A1P1 protections in commercial fishing contexts.
• Proportionality in Environmental Law: Establishing a precedent that minor economic disruptions can be justified by tangible environmental benefits, provided that proportionality is maintained.
• Future Fisheries Management: Provides a framework for future challenges against fisheries determinations, emphasizing the necessity of demonstrating clear and proportionate environmental benefits.

Complex Concepts Simplified

Fixed Quota Allocation Units (FQAs): These are rights granted to fishermen, allowing them to catch a specific portion of a fish species. They can be bought, sold, or leased, and hold significant economic value for commercial fishing operations.

Total Allowable Catch (TAC): The upper limit of fish that can be caught from a specific stock within a set period, agreed upon internationally to ensure sustainable fishing practices.

Proportionality: A legal principle assessing whether the means used by the government to achieve a particular end are appropriate and not excessively burdensome compared to the benefits gained.

Conclusion

The judgment in Sunbeam Fishing Ltd v Secretary of State for Environment, Food and Rural Affairs underscores the judiciary's role in balancing environmental imperatives with economic rights. By affirming that the Secretary of State's determination was both lawful and proportionate, the court reinforced the legitimacy of governmental discretion in environmental regulation. This case sets a precedent for how similar disputes will be navigated in the future, particularly in sectors where economic activities intersect closely with ecological conservation. Importantly, it clarifies the scope of protections under A1P1, thereby providing clearer guidelines for both businesses and regulators in the realm of commercial fishing and beyond.