PETITION FOR JUDICIAL REVIEW BY THE OPEN SEAS TRUST AGAINST THE SCOTTISH MINISTERS

Factual and Procedural Background

This opinion concerns a judicial review brought by a charity ("Petitioner") focused on marine conservation against the Scottish Ministers ("Respondent") regarding a variation of fishing licences related to nephrops and scallops. The Scottish Ministers, through Marine Scotland, admitted that they did not have regard to their National Marine Plan (NMP) when making the variation. The core dispute is whether section 15 of the Marine (Scotland) Act 2010 requires the Ministers to have regard to the NMP when varying fishing licences. The variation imposed catch and time limits on nephrop trawling and scallop dredging, activities which were previously lawful but now subject to restrictions. The Petitioners challenged the variation on the basis that it failed to consider the impact on Priority Marine Features (PMFs) as required by the NMP. The Lord Ordinary found the variation unlawful for failure to have regard to the NMP. The Scottish Ministers appealed this decision.

Legal Issues Presented

1. Whether section 15 of the Marine (Scotland) Act 2010 requires the Scottish Ministers to take authorisation decisions, such as licence variations, in accordance with the National Marine Plan.
2. Whether the Scottish Ministers complied with that statutory duty by relying on a wider scheme involving statutory instruments rather than considering the NMP directly when varying licences.
3. The proper interpretation of the phrase "in accordance with" in section 15(1) of the Marine (Scotland) Act 2010.
4. The extent of procedural obligations imposed by section 15, including whether a duty to have regard to the NMP entails consultation or impact assessments for routine licence variations.

Arguments of the Parties

Respondents and Reclaimers' Arguments (Scottish Ministers)

• The variation was made "in accordance with" the NMP because the Ministers implemented the NMP through statutory instruments (SSIs) that create fisheries management schemes after consultation and parliamentary scrutiny.
• The Ministers contended that the NMP does not require them to consider the plan directly with every licence variation; rather, the wider scheme of SSIs suffices to comply with the plan.
• Routine licence variations are frequent, time-limited, and address socio-economic and sustainability concerns, not directly the protection of PMFs.
• Considering the NMP with each variation would be impractical and disproportionate, requiring extensive consultation and impact assessments that would paralyse decision-making.
• The Ministers argued that section 15(1) imposes a substantive duty to comply with the NMP rather than a procedural duty to consider it in every decision.
• The power to request other UK fishing authorities to impose similar conditions supports their approach and addresses cross-jurisdictional concerns.

Petitioners and Respondents' Arguments (The Charity)

• Section 15 requires that authorisation decisions, including licence variations, must be taken in accordance with the NMP, which entails actual consideration of the plan's policies.
• The Ministers acted unlawfully by failing to consider the NMP in varying the licences, effectively disregarding a statutory duty.
• The NMP is analogous to a local development plan, and decision-makers must identify relevant policies and apply them proportionately.
• The Ministers' approach of relying on a parallel scheme does not satisfy the statutory requirement to take each decision in accordance with the NMP.
• The fact that the Ministers did not consider the NMP means the decision was not in accordance with it, and no retrospective justification based on harmony with the plan is permissible.
• The Ministers' practical concerns about consultation and impact assessments do not excuse the failure to consider the NMP; routine decisions regularly comply with similar planning duties without such impediments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed statutory interpretation of section 15 of the Marine (Scotland) Act 2010, focusing on the phrase "in accordance with" the National Marine Plan in relation to authorisation decisions such as licence variations. It rejected the Ministers' argument that compliance could be achieved indirectly through a wider government scheme involving statutory instruments. The court emphasized that the statute requires each authorisation decision to be taken in accordance with the NMP, or, if not, reasons must be given.

The court found that the Ministers had failed to consider the NMP's policies when making the licence variation, which amounted to omitting an essential statutory consideration. It held that this failure rendered the variation unlawful. The Ministers' concerns about the practical difficulties of applying the NMP to routine variations, including consultation and impact assessments, were dismissed as irrelevant to the statutory duty to consider the NMP.

The court analogized the duty under section 15 to the duties under town and country planning law, where decision-makers regularly apply development plans without extensive consultation for each decision. It clarified that the duty does not require a detailed mechanistic assessment of every policy in the NMP but does require identification and evaluation of relevant policies.

Finally, the court underscored the constitutional principle that Ministers must comply with statute as enacted by Parliament and cannot substitute their own preferred administrative approach for statutory requirements. The statutory duty to take decisions in accordance with the NMP is clear and unambiguous.

Holding and Implications

The court varied the interlocutor of the Lord Ordinary by sustaining the petitioners' plea to the extent of finding and declaring that the notice of variation was unlawful because it was not taken in accordance with the National Marine Plan. It repelled the Scottish Ministers' corresponding plea.

The direct effect is that the particular licence variation challenged was unlawful due to non-compliance with the statutory duty under section 15. Although the variation notice period has expired and the variation has no practical effect, the ruling clarifies the Ministers' ongoing statutory obligations. No broader precedent beyond the interpretation of section 15 was established, but the decision confirms that the Scottish Ministers must consider the NMP in each authorisation decision unless relevant considerations justify departure and reasons are given.