Fishermen’s fury Ministers spend £30k contesting judge’s demand to reconsider Scottish ‘no-trawl’ scheme
SCOTTISH ministers are contesting a judge’s demand to reconsider a no-trawl scheme to protect Scotland’s marine environment in a court battle that has already cost them at least £30,000.
Lady Poole made the ruling after ministers said that revisiting the proposed pilot no-trawl scheme “would serve no practical purpose”. She took action after, in a landmark legal judgment, the Scottish Creel Fishermen’s Federation (SCFF) won a court challenge over the “right to trawl” in Scotland’s inshore waters which was expected to have a marked bearing in fishing rights across the country.
The fishermen argued in a judicial review that the decision to reject the pilot scheme in the Inner Sound off the Isle of Skye was unlawful because the Scottish Government only took into account opposition and did not properly assess the proposal – including examining benefits and the wider issues of inshore fisheries management.
Lady Poole agreed and after admitting being “surprised” at the Scottish Government’s position on her judgment she ruled: “It follows from the court’s findings and orders that a reassessment should be carried out by the respondent. If the reassessment is not carried out in accordance with the requirements of administrative law, it will be open to further challenge in the courts.”
But the Scottish Government has decided to appeal her ruling and fishermen have now accused ministers of bogging the process down so it will not be be able to take action on the judge’s instruction prior to the May Scottish Parliament election.
Alistair “Bally” Philp of the North West Inshore Fisheries Group believes a successful appeal would require the Government to prove Lady Poole erred in law on all counts and that it was “unlikely” to succeed.
He said: “This is probably just a political decision in that it will bog the process down such that it won’t be able to be acted upon prior to the election. I guess it makes political sense not to rock the proverbial boat just before an election, especially if it’s not your own money that’s getting thrown overboard.
“This decision is not just a slap in the face for the fishermen who have fought for years to pilot a low-impact community managed fishery in the Inner Sound, it is a setback for the marine environment itself, which by the Government’s own admission is deteriorating at an alarming rate.”
Rejection
THE case was brought on the basis that the Scottish Government rejected the pilot because of the objections which were mainly from the trawler fishing communities instead of applying their own reasoned consideration.
Lady Poole, one of the newest Court of Session and High Court judges, ruled in the SCFF’s favour saying that ministers had acted “unlawfully” and that it is now entitled to expect the plan is “properly” reconsidered “with an open mind”.
At the core of the case is the Skye pilot that came amid mounting evidence that the use of trawled fishing gear in the inshore caused widespread ecological damage including significant declines in the diversity and size of commercial fish species.
The pilot was designed to test the environmental and economic benefits of creating “trawl-free” potting zones. Before the enactment of the Inshore Fishing (Scotland) Act in 1984, there was, since 1889, a ban on bottom trawling within three miles of the coast providing “coastal fringe of largely undisturbed marine life”.
The prohibition was removed largely because trawling had led to an increased depletion of off-shore stocks and the mobile fishing sector – large trawlers operating in the area – wished to move inshore. Mobile fishing, through trawling and dredging, can often come into conflict with static methods.
Money lost
CREEL fishermen – who lay their pots on the seabed before returning days later to empty them – say thousands of pounds worth of gear can be lost when a fishing boat drags its nets through an area.
In a ruling against Scottish ministers over the pilot decision, Lady Poole said she did “not accept that it was lawful to frustrate the legitimate expectation” that it would take into account their own guidance over the wide-ranging considerations that would be taken into account in its decision. Those included the financial and enforcement implications, international and national obligations, the current quota system, and what improvements would be achieved.
Costs were awarded to the fishermen and their representatives as well as an additional fee based on the complexity and importance of the issues raised.
Robert Younger, solicitor with Fish Legal, which is supporting the fishermen’s case said: “I think this case is significant because it is a real test as to whether the Scottish Government is serious about addressing the environmental crisis that we are facing. The key point for us is not the rejection of the pilot itself, although that is important enough, it is what it reveals about the way Marine Scotland appear to work to defend the interests of the mobile sector rather than working in the interests of the people of Scotland.
“It was clear to us in our three years or so of negotiations with Marine Scotland about ‘misallocation’ of nephrop stocks that they were doing everything in their power to deflect and obfuscate rather than address what is a powerful economic argument regarding a potentially iconic Scottish product.
“Under current management nothing can change without the say so of the mobile sector. That makes a change to a more sustainable and future for our coastal communities impossible. This is matter of the greatest concern.”
‘Accept loss’
ALISTAIR Sinclair, national co-ordinator of the SCFF, said that Rural Economy Secretary Fergus Ewing should “accept their loss with grace”. “They must admit that they have made an error of judgment in respect of the Inner Sound pilot application. We all make mistakes,” he said. “Fishermen, their communities, indeed the public as a whole, are becoming concerned that goalposts are constantly moved to suit political ambitions and agendas which are not fit for modern times.”
A Scottish Government spokesman said: “We can confirm that the Scottish Government has lodged an appeal. Given this is a live legal matter it would not be appropriate to comment further on the case. This case focused on the assessment of a proposal for the Inner Sound of Skye by some creel fishermen, and is not related to wider inshore fisheries management matters. A lot has happened since the case was lodged in May 2020.
“The Scottish Government has been very much focused on supporting the fishing industry through the impacts of Covid-19 and the EU Exit. In December 2020, we also published Scotland’s Future Fisheries Management. This new strategy, developed in partnership with stakeholders, sets out policy initiatives for the next 10 years including for inshore fisheries. We would encourage the SCFF to fully engage with this work through our regional Inshore Fisheries Groups.”
This decision is not just a slap in the face for the fishermen who have fought for years to pilot a lowimpact community fishery in the Inner Sound, it is a setback for the marine environment itself