RECLAIMING MOTION IN THE PETITION OF THE SCOTTISH CREEL FISHERMEN'S FEDERATION AGAINST THE SCOTTISH MINISTERS

Factual and Procedural Background

The case concerns a reclaiming motion (appeal) against interlocutors of the Lord Ordinary dated 2 and 18 February 2021. The Lord Ordinary granted a decree of reduction of the "Inshore Fisheries Pilot: Inner Sound of Skye: Consultation Outcome Report" and ordered the respondents to reassess a 2019 proposal against criteria set out in pre-existing Guidance. Marine Scotland, a directorate of the Scottish Ministers, manages inshore fisheries and had published the Scottish Inshore Fisheries Strategy in 2015 outlining a broad vision for sustainable fisheries management.

In 2017, the Cabinet Secretary announced pilot schemes to improve fishing management, inviting proposals assessed against Guidance criteria. Several proposals were submitted, including one from the petitioners' member organisations for the Inner Sound of Skye. Following public consultation, some pilots were selected and others, including the Inner Sound proposal, were rejected primarily due to opposition and concerns about economic impact, monitoring, and displacement of fishing effort.

In 2018, after further representations, Marine Scotland agreed to reconsider the proposal or a related new proposal for the Inner Sound, despite the earlier decision. This led to a new consultation in 2019 on a revised proposal with additional management measures and a new Outcome Report in 2020. The new proposal was rejected mainly due to continued opposition and concerns about effectiveness and impact.

The Lord Ordinary held that the new proposal remained subject to the original Guidance criteria and that the respondents had failed to apply these criteria properly, resulting in procedural unfairness, irrationality, and failure to give adequate reasons. Remedies were granted requiring reassessment in accordance with administrative law.

Legal Issues Presented

1. Whether the Lord Ordinary was correct to hold that the original Guidance criteria applied to a new proposal submitted after the initial decision on pilot schemes had been taken.
2. Whether the respondents acted with procedural fairness in assessing the new proposal.
3. Whether the respondents breached legitimate expectations by not applying the Guidance criteria.
4. Whether the decision rejecting the new proposal was irrational or lacked adequate reasons.
5. Whether the remedies granted by the Lord Ordinary requiring reassessment were appropriate.

Arguments of the Parties

Respondents' Arguments

• The Lord Ordinary erred in finding a legitimate expectation that the new proposal would be assessed solely against the original Guidance criteria, which was not a clear, unambiguous, or unqualified representation.
• The new proposal was assessed in a materially different process, separate from the original pilot selection, and the Guidance did not apply to this new consultation.
• The respondents acted with procedural fairness, considering consultation responses fully, including opposition to the original proposal.
• The Lord Ordinary wrongly equated failure to consider a particular material consideration with irrationality; the level of scrutiny should be low given the nature of the decision.
• The decision to reject the new proposal based on opposition and substantive concerns was rational and justified.
• The reasons given in the Outcome Report were adequate and left no doubt about the basis for the decision.
• The remedies requiring reassessment against the Guidance criteria were unreasonable, failing to consider changes in policy and circumstances since 2015.

Petitioners' Arguments

• The central issue was the failure to properly consider the criteria in the Guidance, which constituted a clear, unambiguous, and unqualified representation that proposals would be assessed against those criteria.
• The grounds of review (legitimate expectation, procedural fairness, irrationality, failure to give reasons) were all variations on this central theme.
• The new proposal was entitled to be lawfully assessed against the five criteria, with other considerations allowed only if adequately reasoned.
• The Outcome Report on the new proposal failed to give adequate reasons, lacking intelligible explanation on how the criteria were applied.
• The Lord Ordinary correctly granted remedies requiring reassessment, taking into account the passage of time and new Fisheries Management Strategy.

Table of Precedents Cited

Court's Reasoning and Analysis

The court found that the Lord Ordinary erred fundamentally in holding that the original Guidance criteria applied to the new proposal, which was submitted and considered in a separate, stand-alone decision-making process after the initial pilot selection. The Guidance was intended to govern the initial submission and assessment of pilot proposals and did not have continuing formal application once proposals had passed the initial viability stage and moved to public consultation and political decision-making.

The court noted that the term "criteria" in the Guidance referred primarily to two specific pilot objectives—localisation and separation of fishing methods—not the broader five bullet points relied upon by the petitioners. The new proposal was assessed through a distinct consultation process focusing on impacts and support, not on the original Guidance criteria.

The court emphasized that the selection of pilots was a political decision informed by public consultation responses rather than a purely administrative application of fixed criteria. The rejection of the new proposal based on the strength and nature of opposition was a legitimate exercise of democratic governance and did not constitute procedural unfairness, irrationality, or failure to give adequate reasons.

Further, the court rejected the petitioners’ argument that the respondents had a legitimate expectation that the new proposal would be assessed solely against the original Guidance criteria, finding no clear, unambiguous, and unqualified representation to that effect given the changed circumstances and process.

The court also held that the remedies granted by the Lord Ordinary requiring reassessment against the Guidance criteria were unreasonable, failing to account for the passage of time, changes in policy, and the nature of the new consultation process.

Accordingly, the court allowed the reclaiming motion, recalled the Lord Ordinary’s interlocutors, and refused the petitioners’ prayer.

Holding and Implications

The reclaiming motion is allowed, the interlocutors of the Lord Ordinary are recalled, and the petitioners’ petition is refused.

The court’s decision confirms that the original Guidance governing pilot proposals does not bind subsequent, separate consultations or decisions on new proposals outside the initial pilot selection process. The ruling clarifies that political decisions informed by public consultation responses may justifiably depart from earlier administrative criteria without breaching procedural fairness or legitimate expectations, provided adequate reasons are given. No new precedent beyond the direct effect on the parties was established.