R (States of Guernsey and Another) v Secretary of State for Environment, Food and Rural Affairs and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 22 July 2016 |
| Neutral Citation | [2016] EWHC 1847 (Admin) |
| Docket Number | Case No: CO/5354/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 July 2016 |
[2016] EWHC 1847 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Jay
Case No: CO/5354/2015
Marie Demetriou QC and Tom Pascoe (instructed by The Law Officers of the Crown, Guernsey) for the Claimants
James Eadie QC and David Pievsky (instructed by Government Legal Department) for the First Defendant
Sasha Blackmore (instructed by Browne Jacobson LLP) for the Second Defendant
Hearing dates: 11 th and 12 th July 2016
INTRODUCTION
This is a claim for judicial review seeking to challenge two interconnected decisions. The first is the decision of the First Defendant ("Defra") dated 23 rd July 2015 indefinitely suspending the Fisheries Management Agreement ("FMA") between Defra and the First Claimant, The States of Guernsey (which I will shorten hereafter to "Guernsey"). The second, which is very much parasitic on the first, is the decision of the Second Defendant ("MMO") made on or about 29 th July 2015 indefinitely suspending, with effect from 1 st August, various reciprocal UK fishing vessel licences issued by it to a number of fishing vessels registered in the Bailiwick.
This claim involves complex questions of law, including questions of justiciability, in the context of a dispute relating to the indirect application (if any) of the Common Fisheries Policy ("CFP"), and attendant quotas, to vessels fishing in the seas surrounding the Bailiwick; and the rights of licence holders (if any) under Article 1 Protocol 1 ("A1P1") of the ECHR.
THE PARTIES
Defra is the UK Government Department responsible for both domestic fisheries policy and the application, operation and administration both here and at EU level of inter alia the CFP.
The island of Guernsey is not part of the UK (see, for a detailed exposition of the nature of the constitutional arrangements between Guernsey and the UK, paragraph 6ff of the judgment of Baroness Hale DPSC in R (oao Barclay and another) v SSJ and another [2015] AC 276). Guernsey, together with Jersey and the Isle of Man, is a Crown Dependency. In theory, UK Government and Parliament have full sovereign powers in relation to Guernsey, but in practice the relationship is more collegiate and facilitative, guided by a number of constitutional Conventions designed to accord Crown Dependencies as much autonomy as possible, in the context of their own democratically elected legislatures and municipal organs of State. As paragraph 13.4 of Defra's Detailed Grounds of Defence explains, "the UK does not legislate or intervene in the domestic affairs of the Crown Dependencies without their consent, other than in very limited circumstances". It is convenient to leave such circumstances undefined.
Guernsey has its own Commerce and Employment Department ("the Department") which is responsible for fisheries policy.
The MMO is an executive non-departmental public body established and given powers under the Marine and Coastal Access Act 2009 with delegated responsibility from Defra for the implementation of fisheries management measures as they relate to the fishing fleets of UK and Guernsey. In this context, the UK means the four UK Fisheries Administrations including Defra, Marine Scotland, the Welsh Government and the Department of Agriculture, Environment and Rural Affairs (Northern Ireland). Key elements of policy are determined by Defra and then implemented, managed and administered by the MMO.
The Second Claimant ("Mr Fallaize") has been a full-time fisherman in Guernsey for 28 years. His current vessel, launched in 2006, is 8.4 metres long. Mr Fallaize works alone. He fishes wet fish, crab and lobster, both within and without Bailiwick waters. In 2006, Mr Fallaize applied for and was granted a licence from the Department which covers the 0–12 nm zone. According to his evidence, in 2009 he applied for and was granted a reciprocal licence from the MMO which enables him to fish within UK and EU waters (i.e. beyond the 12 nm zone) and to land his catches in the EU, including in particular France (either he must be wrong about the year, or the entity which granted his application, because in 2009 the MMO did not exist and licensing powers were exercised directly by Defra). When he fishes within Bailiwick waters, Mr Fallaize is not subject to any EU quotas; but he fully accepts that when he fishes beyond the 12 nm zone, he is.
ESSENTIAL FACTUAL BACKGROUND
This is not substantially in dispute, although (and unsurprisingly) Counsel for the respective parties sought to place emphasis on different aspects of the overall picture. Insofar as there any differences between the various witnesses who have assisted the court, these seem to me to relate to matters of interpretation rather than of primary fact. The main reason for the existence of these divergences of viewpoint is the uncertainty which is necessarily attendant on the interrelation between imprecise, loose-limbed constitutional Conventions and a tightly-drawn legal and regulatory framework.
In my view I need set out a succinct narrative which focuses on essential matters.
The Guernsey Fishing Fleet
In 2013 the Guernsey fleet was composed of 159 vessels less than 10 metres in length, and 7 vessels greater than 10 metres. The industry employs over 180 people, and it is apparent from the basic arithmetic that most vessels are single-crewed. Christopher Morris charmingly describes the Bailiwick's fishing industry as being "artisan in nature": I can see his point, but it takes the argument no further.
More relevantly, Mr Morris informs me that approximately 60% of the fleet target lobster and crab for both local and wholesale markets in Guernsey, Sark, Alderney and France. I mention this specifically because these crustaceans are not covered by any EU quota. Mr Morris also states that approximately £5M (net sales) of wet fish, crab and lobster was caught by Bailiwick vessels in 2014 with approximately £1M being sold within the Islands. The remaining £4M was sold and landed into the Port of Cherbourg for wholesale and auction sale. He is aware that "around 23 Bailiwick vessels currently land catches into France". I was told during the hearing that the 27 nm trip to Cherbourg takes approximately 4 hours.
The Territorial Waters of the Bailiwick
The Bailiwick of Guernsey has a territorial sea of 3 nm from the low water mark for each of the islands. This area is not covered by the FMA. In practice, Guernsey has "exclusive jurisdiction" over it, but in strict law this is not the position. Under section 1 of the Fishery Limits Act 1976, as extended to Guernsey by the Fishery Limits Act 1976 (Guernsey) Order 1989, the whole of the 0–12 nm area adjacent to Guernsey is within British Fishery Limits (or, as the Guernsey witnesses prefer to describe it, Bailiwick Fishery Limits).
The focus of this case is the 3–12 nm zone. The strict legal position has to be viewed in parallel, or simultaneously, with accepted constitutional Convention pursuant to which, at all material times Defra has ceded de facto or operational control to Guernsey. How this plays out in relation to the licensing regime will be discussed under the following sub-heading, but at this stage I need examine the ramifications for the CFP and EU quotas.
According to paragraph 10 of the first witness statement of Christopher Morris:
"I am aware that Guernsey has never accepted that the quota management measures applied by the UK in accordance with its obligations under the CFP apply to Guernsey, and it is my belief that the UK is aware of and has never contested this long standing position."
Ms Marie Demetriou QC for Guernsey submitted that Defra has accepted in these proceedings that EU quota management measures do not formally apply to Guernsey. I do not read paragraph 10 of the witness statement of Nigel Gooding (Defra policy official in the EU, Marine and International Directorate) as amounting to a categorical acceptance that these measures do not apply, but I have not overlooked paragraph 2 of Defra's Summary Grounds of Defence. The way in which Mr James Eadie QC put the point on behalf of Defra was that neither party has wanted the issue to be put to the test nor was inviting the court to give a ruling. I fully understand the delicate political sub-text underlying this submission, but for present purposes I must assume, without deciding, that EU quotas do not apply. This self-denying ordinance is not seeking to obfuscate a possible breach by the UK of its EU obligations because, as must explicitly be stated, relevant fish caught within the 3–12 nm zone are counted against the UK's Total Allowable Catch ("TAC").
Mr Eadie referred to a congeries of interrelated considerations which he submitted led inexorably to the conclusion that, as matter of policy and common justice, Guernsey must accept that fishing within the 3–12 nm zone should be subject to quota. My interpretation of this submission is that Guernsey should accept the logic, reason and good sense of Defra policy on this point. These considerations are: (i) Zone VIIe (comprising, in part, the territorial waters of the Bailiwick) is comprehended by the EU Fishing regime; (ii) Crown Dependency vessels are British vessels and included in the EU vessel register; (iii) all fish caught in the 3–12 nm zone are reckoned against quota (assuming always that the species in question has a...
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