The United Kingdom Assocation of Fish Producer Organisations v Secretary of State for Environment, Food and Rural Affairs Marine Management Organisation (Interested Parties) New Under Ten Fishermen's Association Greenpeace Ltd (Interveners)

JurisdictionEngland & Wales
JudgeMr Justice Cranston
Judgment Date10 July 2013
Neutral Citation[2013] EWHC 1959 (Admin)
Docket NumberCase No: CO/4796/2012
CourtQueen's Bench Division (Administrative Court)
Date10 July 2013
Between
The United Kingdom Assocation of Fish Producer Organisations
Claimant
and
Secretary of State for Environment, Food and Rural Affairs
Defendant
Marine Management Organisation
Interested Parties
New Under Ten Fishermen's Association Greenpeace Ltd
Interveners

[2013] EWHC 1959 (Admin)

Before:

Mr Justice Cranston

Case No: CO/4796/2012

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Tom de la Mare QC and James Segan (instructed by Andrew Jackson) for the Claimant

Jonathan Swift QC and Deok-Joo Rhee (instructed by Treasury Solicitors) for the Defendant

Kassie Smith QC and Elizabeth Kelsey (instructed by Harrison Grant) for Greenpeace/ NUTFA

Justine Thornton (instructed by Browne Jacobson) for the Marine Management Organisation

Hearing dates: 13 May 2013

Approved Judgment

Mr Justice Cranston

Mr Justice Cranston :

I INTRODUCTION

1

This claim concerns the allocation of fishing quota by the Secretary of State for Environment, Food and Rural Affairs ("the Secretary of State"), in his capacity as head of the English fisheries administration. Under the Common Fisheries Policy the European Union allocates fishing quota to Member States. Since 1999 the Secretary of State has in turn distributed that quota by a system of fixed quota allocation units. Generally speaking fixed quota allocation units are allocated to the licensee for each vessel. The number of units which a fisherman holds determines the percentage share of the United Kingdom's quota for a particular stock which he can fish, after adjustments to the United Kingdom quota that the Secretary of State might do.

2

On 10 February 2012 the Secretary of State announced changes to the way in which fishing quota was to be allocated for the years 2012 and 2013. This is the decision challenged in this judicial review. For 2012 the decision reduced the quota to be allocated to members of English fish producer organisations in respect of certain stocks. For 2013 the decision reduced the number of fixed quota allocation units held by members of English fish producer organisations in respect of the same stocks. Under the decision these reductions in quota and fixed quota allocation units were transferred to what was described as the English under 10 metre fishing fleet (the inshore fleet). The basis of the decision was to maximise the use of the quota available under the Common Fisheries Policy. The decision followed an extensive consultation and appeal process, which are not challenged in these proceedings.

3

In essence what is being said in this judicial review is that the decision deprives one part of the English fishing fleet of a valuable entitlement, without compensation, to gift it to another part of the fleet. In doing this the Secretary of State is said to have acted unlawfully in defeating the former's legitimate expectations, interfering with its property rights, and acting in a discriminatory manner.

II BACKGROUND

4

The parties in this judicial review are first, the claimant, the United Kingdom Association of Fish Producer Organisations. It is a trade association representing all the fish producer organisations in England, Wales and Northern Ireland. The producer organisations take a number of legal forms. Some are companies, others are associations of various types. Membership has generally been open to any vessel licensed by any of the four fishing administrations in the United Kingdom, England, Scotland, Wales and Northern Ireland. In practice members of producer organisations are most of the over 10 metre vessels in the English fishing fleet. Some producer organisations, such as the Cornish Fish Producer Organisation, have under 10 metre members. There are similar producer organisations in Scotland, Wales and Northern Ireland.

5

The crucial role of the fish producer organisations in relation to this litigation is that quota is allocated to them based on the fixed quota allocation units held by vessels in their membership and on "dummy" licences (a licence not attached to a particular vessel but held by a producer organisation and enabling it to hold fixed quota allocation units according to its rules). Each producer organisation then manages its members' fishing quota. Quota is allocated directly to it and it will hold it collectively on behalf of its members or pass it on to the member concerned. Some producer organisations set monthly catch limits, which may be supplemented by quota units held by individual members; others issue annual vessel or company quota. Producer organisations are responsible for ensuring that their members comply with their rules. While they must have procedures to penalise members who over-fish, there is no sanctioning of under-fishing.

6

The defendant is the Secretary of State for Environment, Food and Rural Affairs ("the Secretary of State"). His department is the Department for Environment, Food and Rural Affairs ("Defra"). The Secretary of State has a variety of roles in relation to fisheries. A key role is his part in the European Union's Common Fisheries Policy, where he advances the United Kingdom's interests within the Council of Ministers. Thus he negotiates the United Kingdom's allocation of quota under the Common Fisheries Policy. Within the United Kingdom, as a result of devolution, important tasks in fisheries administration are divided between the Secretary of State (for England), Marine Scotland, the Welsh Assembly Government and the Department of Agriculture and Rural Development of Northern Ireland. Together these are known as the fisheries administrations or departments. There is a Concordat between them. Within England the Secretary of State has responsibility for the allocation of fishing quota, at present through the system of fixed quota allocation units.

7

The Marine Management Organisation, the Interested Party, was constituted under the Marine and Coastal Access Act 2009. Its statutory purpose is to make a contribution to the achievement of sustainable development. Under section 14 of the 2009 Act the Secretary of State has power to enter into agreements with the Marine Management Organisation authorising it to perform any of his marine functions. Thus the Marine Management Organisation licenses fishing vessels registered to English ports. It also monitors the uptake of quota to ensure that the United Kingdom does not exceed the quota allocated to it by the European Union. Moreover, it has managed and allocated the fishing quota of the inshore fishing fleet, which has been held centrally on behalf of all such vessels which are not members of a producer organisation. To do this it has used landing records to estimate how many vessels were likely to land fish each month. It has then set monthly limits on landings based on these expectations (taking into account the seasonal nature of some activity), but made adjustments if more or less volume than expected was landed. The Marine Management Organisation has performed a similar function for over 10 metre vessels which were not members of a fish producer organisation.

8

The First Intervener is the New Under Ten Fishermen's Association. It is a relatively recently formed organisation with under 10 metre vessels in England and Wales as members. Its members include trawlers and netters, liners and shell-fishermen, and fishermen who fish both quota and non-quota species. The latter include, for example, fin fish and shell fish. Unlike the producer organisations the association has no role in allocating the fishing quota of its members. In 2011 it launched a joint campaign with Greenpeace, the well known environmental organisation and the Second Intervener in this litigation. Despite differences, the two organisations concluded that there was sufficient common thinking on some issues to serve as a foundation for combined action in support of sustainable fishing and the wider marine environment.

9

The Interveners' submissions began with the proposition that fish stocks are a public resource, recognised as such as long ago as Magna Carta: see Attorney General for the Province of British Columbia v Attorney General for Canada [1914] AC 153, 168–170 (PC). Consequently there can be no property right in fish until they are caught. That submission was a useful reminder but common ground. The claimant eschewed any submission that the ownership of fish follows ipso facto as a result of holding fixed quota allocation units. The Interveners then underscored sustainability as an aim of the European Union's Common Fisheries Policy. Sustainability is contained as an important objective of the constitutive Regulation of the European Union, discussed later in the judgment. The Interveners also pointed to the support which the European Commission and European Parliament have given fishing by means of smaller fishing vessels because of the economic and social advantages. They also highlighted, as we see below, how sustainability was referred to as a policy objective in the background documents to the decision under challenge in this judicial review. However, the implications for sustainability of different sized fishing vessels are a hotly contested issue. The Secretary of State did not attempt to defend his decision by reference to it directly. Thus there is no need for me to enter into the territory of sustainability and whether in general the under 10 metre fleet engages in more sustainable fishing than other fishing vessels.

The fishing fleet

10

As will have become apparent the English fishing fleet is divided between over 10 metre and under 10 metre vessels. (The length of...

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