THE SCOTTISH CREEL FISHERMAN'S FEDERATION AGAINST THE SCOTTISH MINISTERS

Factual and Procedural Background

The Petitioner, the Scottish Creel Fishermen's Federation ("SCFF"), challenged a decision by the Scottish Ministers related to fisheries management in the Inner Sound of Skye. The Scottish Ministers, through Marine Scotland, manage inshore sea fisheries. In 2017, Marine Scotland invited proposals for pilot projects under the Inshore Fisheries Pilots initiative, governed by published Guidance setting out criteria for assessing proposals.

SCFF submitted an Original Proposal to prohibit mobile gear fishing year-round in certain areas of the Inner Sound during a pilot period, which was rejected in the 2018 Outcome Report due to concerns including impact on the mobile fishing industry and monitoring issues. Subsequently, a New Proposal was submitted by SCFF members, proposing designated zones with seasonal mobile gear fishing and other management measures, including quotas and advisory groups.

Marine Scotland conducted a consultation on the New Proposal in 2019 and published a 2020 Outcome Report stating that the New Proposal would not be taken forward in its entirety, citing continuing opposition as a key reason. SCFF brought legal proceedings challenging the lawfulness of this decision.

Legal Issues Presented

1. Whether Marine Scotland was required to assess the New Proposal against the criteria published in the Guidance issued at the outset of the Inshore Fisheries Pilots initiative.
2. Whether the Scottish Ministers breached legitimate expectations by failing to assess the New Proposal according to the published criteria.
3. Whether Marine Scotland unlawfully took into account irrelevant considerations, specifically opposition to the proposal, in rejecting it.
4. Whether Marine Scotland failed to provide adequate reasons for its decision not to proceed with key parts of the New Proposal.
5. Whether the decision was irrational due to failure to consider material considerations and unreasonable reliance on opposition.

Arguments of the Parties

Appellant's Arguments

• Marine Scotland should have assessed the New Proposal against the published criteria in the Guidance.
• If the criteria were replaced by a focus on "unique learning opportunities," the New Proposal was not assessed against that either.
• The decision improperly relied on opposition to the proposal, which was not a published criterion.
• Failures included taking into account irrelevant considerations, breaching legitimate expectations, acting unfairly and inconsistently, and failing to give adequate reasons.

Respondent's Arguments

• The 2019 Consultation was a new consultation, not a reopening of the 2017 Consultation.
• There was no legitimate expectation that the published criteria would be exclusively used to assess the New Proposal.
• Opposition to the proposal was a relevant consideration and could be part of the assessment.
• The consultation complied with minimum legal standards and the 2020 Outcome Report sufficiently explained the decision.
• Even if unlawful, remedies should be withheld as the process was ongoing and the 2020 Outcome Report was not final.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] UKHL 3	Duty to keep exercise of powers under review.	Recognized that the Scottish Ministers have a duty to review exercise of statutory powers.
Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997	Limits on discretionary powers.	Confirmed that discretion must be exercised lawfully and within limits.
Devon County Council v Secretary of State for Communities and Local Government [2010] EWHC 1456	Public authorities expected to follow their own guidance unless justified.	Supported the principle that Marine Scotland was expected to follow its published Guidance.
Lambeth London Borough Council v Secretary of State for Housing, Communities and Local Government [2019] UKSC 33	Objective construction of documents in context.	Applied to interpret the Guidance's meaning objectively.
R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363	Requirement to honour promises or practices unless justified.	Supported finding of unfairness in departing from published criteria without good reason.
R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12	Right to have case considered under adopted lawful policy.	Confirmed that proposals should be considered under the published Guidance.
R v IRC ex parte MFK Underwriting Agents Ltd [1990] 1 WLR 1545	Legitimate expectation requires clear, unambiguous, unqualified representation.	Found that the Guidance created a legitimate expectation to assess proposals by its criteria.
R (Hurst) v London Northern District Coroner [2007] 2 AC 189	Material considerations must be taken into account.	Held that the Guidance criteria were material and had to be considered.
Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759	Distinction between material considerations and weight given.	Applied to confirm that while weight is discretionary, material considerations must be accounted for.
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223	Unreasonableness (Wednesbury test) in administrative decisions.	Decision based solely on opposition was irrational under this standard.
Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345	Requirement for proper and adequate reasons addressing substantial questions.	Found the reasons given in the 2020 Outcome Report inadequate.

Court's Reasoning and Analysis

The court analyzed whether Marine Scotland was bound to assess the New Proposal against the criteria published in the Guidance. It found that the Guidance was issued at the outset of the Inshore Fisheries Pilots initiative and was intended to govern all proposals under that initiative. There was no evidence the Guidance had been withdrawn or replaced. The court held that public authorities are expected to follow their own published guidance unless there is a good reason to depart, which was not demonstrated here.

The court rejected the respondent's argument that the criteria applied only to deciding which proposals should go forward to consultation, holding instead that the criteria applied to the ultimate decision whether a pilot should proceed. The 2020 Outcome Report failed to address the criteria and instead relied heavily on the extent of opposition to the New Proposal, which was not a published criterion.

The court found that reliance on opposition alone was irrational, as opposition was not linked to the published criteria and opposition from adversely affected interests was foreseeable given the nature of the proposal. The court also held that the Scottish Ministers frustrated a legitimate expectation that the New Proposal would be assessed according to the published criteria, constituting misuse of power.

Further, the reasons given in the 2020 Outcome Report were inadequate, failing to address how the New Proposal measured against the criteria or explain any departure from them. The court declined to accept post hoc justifications offered after proceedings commenced.

In summary, Marine Scotland acted unlawfully by failing to follow its own Guidance, breaching legitimate expectations, failing to consider material considerations, acting irrationally, and providing inadequate reasons.

Holding and Implications

The court held that Marine Scotland was obliged to assess the New Proposal against the published criteria in the Guidance and failed to do so, resulting in an unlawful decision.

The decision not to proceed with key parts of the New Proposal was quashed on grounds of procedural unfairness, breach of legitimate expectation, irrationality, and inadequate reasoning. The court refused to withhold remedies despite the passage of time and ongoing management processes, emphasizing that the Petitioner is entitled to have the New Proposal properly considered in accordance with the published criteria and taking into account consultation responses.

No new precedent was established beyond the application of established principles of administrative law to the facts of this case. The ruling mandates that public authorities adhere to their own published criteria and provide adequate reasons when making decisions affecting stakeholders.