Judicial review: closer to the surface

It was recently reported that the High Court in England ruled in favour of redistributing some fishing rights from large scale producers to smaller individual fishermen. There has been a great deal of discussion and development in this area over the last few years.

In Scotland, a prior decision in May was issued by Lord Uist, in which the petitioners, the operators of a fishing vessel, sought judicial review of a decision of the Scottish Ministers to amend the fish landing details of their vessel, and to reduce the quota attributable to the vessel in respect of future years’ fishing: Christina S FR 224 v Scottish Ministers [2013] CSOH 85.

Background to the quotas

The background and basis for the quotas was helpfully outlined in this case.

The European Union, by virtue of the EU Common Fisheries Policy, allocates a fishing quota to each member state for each year. It should be noted in passing that there are different considerations and regulations when talking about pelagic fishing (surface fish, such as mackerel and herring) and other types of fishing and species of fish. The allocation of that national quota to individual vessels is left to the discretion of individual member states.

The United Kingdom has adopted a system of fixed quota allocation (FQA) units which attach to each individual fishing vessel. In each year the national fishing quota is apportioned among the producers’ organisations and individual vessels outside them. Each vessel is allocated its quota in accordance with its own FQA units. The system is given effect through the licence conditions imposed on individual fishing vessels. These fishing quotas allocated by the EU provide a permit for those making a living from the seas. Without them, it is not possible to catch and sell fish legally.

In 2006, as a result of investigations carried out, the Scottish Fisheries Protection Agency (SFPA) concluded that in the years 2001 to 2005 many British and Irish fishing vessels had made undeclared landings in excess of their permitted quotas at Scottish ports. The effect of this was to reduce the national quotas for mackerel and herring which had previously been allocated to the UK and Republic of Ireland for the years 2007 to 2012. The UK authorities were consequently required to allocate the reduction in the national quota among the vessels in the British fishing fleet. The policy which they adopted was that, insofar as the vessels responsible were identifiable and still active, their quota should be reduced for the years 2007 to 2012 to reflect their overfishing.

A decision was taken to that effect, and the petitioners’ quota was reduced accordingly.

Unlawful decision

The court was satisfied that the decision was one taken in a manner contrary to natural justice and in breach of s 57(2) of the Scotland Act 1998, and that it should be reduced.

The basis for the first challenge was that the respondents had not disclosed the evidence on which they relied for their decision, and the petitioners were accordingly unable to answer the case against them or to comment on the evidence. The second point was that the decision was ultra vires of the respondents under s 57(2) in respect that (i) by refusing to disclose the evidence against the petitioners, they acted contrary to the fundamental principles of natural justice, to which they were obliged to have regard when taking decisions in an area within the ambit of European Union (EU) law; and (ii) by interfering with a possession of the petitioners in a manner not authorised by law, they acted contrary to article 1 of Protocol 1 (A1P1) to the European Convention on Human Rights (ECHR).

Natural justice

Lord Uist held that the decision was administrative, and not judicial. The respondents were under a duty to reach their decision fairly, and in the context of this case that meant following a fair procedure. The principle had been breached as the petitioners were not provided with the full evidence on which the decision was based, and so were not given an opportunity to comment on or contradict it, before the decision was made. Comparisons were drawn with a previous case in Ireland known as “The Atlantean” [2007] IEHC 233, concerning similar circumstances.

Ultra vires

Section 57(2) provides that a member of the Scottish Executive (now Government) has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law. In this case the quota deductions were imposed on the petitioners in order to give effect to the UK’s obligations under the regulations. Natural justice is a recognised principle of EU law. The decision in this case breached the right to be heard. The point raised was in substance the same as under the previous heading, and as the decision was taken in a procedurally unfair manner and in breach of natural justice, it followed that it was taken in breach of EU law and s 57(2) of the Scotland Act.

Article 1 Protocol 1

An interesting discussion also took place during the judgment regarding the application of A1P1 of the ECHR, and whether this can be invoked, depending on the definition of a “possession”. His Lordship held that A1P1 was not engaged on this point, as the petitioners had no legal right to any particular future quota in a licence granted to them by the respondents.

This is in contrast to the more recent decision in England, where it was held that fixed quota allocation units have a monetary value and can be transferred separately from a fishing licence – they are therefore possessions in terms of A1P1. This latter approach seems to take into account the practical and actual effects, which are difficult to ignore.

Commentary

This judgment is part of a two stage procedure – given that the original decision has been reduced, the next question the court will have to consider is whether damages are to be payable to the fishermen, and how much.

Many will be aware of the issues relating to the reported quota allocation cases and the resultant prosecutions last year in respect of overfishing. These prosecutions were based on a breach of the licence conditions imposed on vessels limiting the amount of fish which the vessels were permitted to land, as noted above. Confiscation proceedings under the proceeds of crime legislation also followed.

In the confiscation proceedings, a debate was heard by Lord Turnbull in 2011. Points taken, by way of devolution minutes, included whether the quota allocation deduction imposed meant there should even be any payback at all, as this was arguably a double deduction. The proceedings were settled before a final conclusion was reached on this point.

The judicial review proceedings followed and, as reported in the press, there may be a concern that the fishermen convicted should be allowed to recover anything at all by way of damages, but as noted, there was always an issue that the penalty had effectively been imposed twice.

In light of all of the above, these further developments will be of significance to the fishing industry. Whilst the fishermen were roundly condemned by the Government and Crown Office, particularly in relation to the proceeds of crime pursued and recovered, it would appear, at least on one view, that all was not what it seemed as to how this was conducted by the authorities.

Time limits in judicial review

It is interesting to consider this complex and important case in the context of the proposed procedural changes set out in the Courts Reform (Scotland) Bill, currently being widely considered, consulted and commented on. The Scottish Government is intending to report on this consultation by October/November this year. In England the time limit for judicial review was reduced to six weeks on 1 July. It is suggested that cases of this nature fit well in the current scheme – being by way of petition and not restricted to a three-month timescale, or sift, as recently proposed in the consultation paper.

The responses to these proposals have not in general been opposed to the suggested reforms. However, it is questionable whether the restrictions put forward are entirely necessary. There should be more court time available if the majority of the reforms are implemented. If the concern is that cases are indeed brought without merit, these can readily be dealt with at an early first hearing. On one view, avoiding a three month restriction ties in with access to justice for all, which it is suggested should still be at the heart of the reforms.