JUDGMENT SUMMARIES

The dispute concerned a decision taken by Marine Scotland not to adopt a proposed pilot for the Inner Sound of Skye relating to the management of inshore fisheries.

Background

Marine Scotland, a directorate of the Scottish Ministers, published a strategy setting out a broad vision for the development of more sustainable, profitable and well-managed inshore fisheries by modernising management and reaping long term sustainable rewards.

The Cabinet Secretary for Rural Economy and Connectivity announced an intention to create pilot programmes to look at ways of improving fishing management. Interested parties were invited to submit proposals on where and how the pilots should take place. Guidance was issued on what criteria the proposals should address along with a deadline for submission. 

Several proposals were lodged including one from members of the Scottish Creel Fishermen’s Federation. Following further consultation three areas were selected for the pilots: Mull, the Outer Hebrides and Arbroath/Montrose.

The reasons given for rejecting the Inner Sound of Skye option included concerns for those currently using the area for trawl fishing; a dispute over the economic benefit; and a limited proposal on how to monitor the impacts on stock and environment.

The Federation was allowed to provide a revised proposal which included calls for a mobile (trawling) fishing area for 6 months of the year; areas designated exclusively to creel (static) fishing; certain quotas; minimum landing sizes; and the establishment of an Inner Sound Advisory Group.

Although Marine Scotland produced a new outcome report, its conclusion remained the same. It stated that “the responses to the consultation make it clear that there is continuing opposition to the proposed inshore fisheries pilot in the Inner Sound of Skye. While some of the management measures were well supported...the majority of the proposed measures set out in the consultation were strongly opposed by respondents”. However, the Cabinet Secretary announced that he would set up an advisory group.

Decisions

Following Marine Scotland’s decision, the Federation raised a Court action against the Scottish Ministers arguing that their proposal for an Inner Sound pilot had not been properly considered against the original guidance criteria. The judge at first instance ruled that the Scottish Ministers required “to assess the Inner Sound Inshore Fisheries Pilot Proposal against the criteria published by them in their Inshore Fisheries Pilots - Proposal Form – Guidance”.

Earlier this month, the Scottish Ministers appealed the ruling, arguing that the Federation’s new proposal had been lodged after a decision had already identified the areas to be used for the pilot scheme and that the process had moved beyond considering the new proposal against the original guidance.

The appeal judges ruled that “the petitioners’ new proposal was submitted, considered, and rejected in the course of a separate and stand-alone decision-making process. That process of decision-making was fairly and properly conducted.” 

In delivering the Opinion of the Court, the Lord President, Lord Carloway, said: “It is important to view the process for what it was. All that was being decided was whether certain pilots were to take place … the decision-making exercise should not be compared with one which might involve a permanent adverse effect on economic interests and certainly not with one which had the potential to interfere with a person’s human rights.”

Read the judgment.

The judgment published on the Scottish Courts and Tribunals website is the only authoritative document.