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Something fishy up north- Scottish Government loses fisheries consultation challenge

One of the areas we’ve been anticipating an uptick in attention recently has been in agriculture and fisheries, and this year has already provided us with our first case in this area. Scottish Creel Fishermen’s Federation v Scottish Ministers [2021] CSOH 1 comes to us, as the title would imply, from the Scottish Courts and is a challenge to the refusal of the Scottish Government (acting through Marine Scotland) to implement an inshore fisheries pilot scheme.

Between 2015 and 2019, the Scottish government worked towards the implementation of a new Scottish Inshore Fisheries Strategy. They issued an initial invitation for proposals for pilot schemes in May 2017, which was accompanied by a list of criteria by which proposals would be assessed.

One of the respondents to this initial call for proposals was the Scottish Creel Fishermen’s Federation, whose initial proposal was rejected in the outcome report published in June 2018, largely for reasons related to the criteria in the original guidance document. Unhappy with this, the Federation made representations, and Marine Scotland accepted a revised proposal, different from the original one, which Marine Scotland consulted on in January 2019. A year after this, they published an outcome report which concluded that the new proposal was largely opposed by respondents, and rejected the proposal. At no point were the previous assessment criteria mentioned.

The SCFF argued four points before the court: that Marine Scotland breached a legitimate expectation that the new proposal would be assessed against the previously published criteria; that they failed to take into account relevant considerations and did take into account irrelevant considerations; that they acted unfairly, inconsistently and unreasonably; and that they failed to give adequate reasons for rejecting the new proposal.

Scottish Ministers argued that the 2019 consultation was in fact a new consultation, and there was no legitimate expectation that the 2017 guidance would be exclusively used to assess the new proposal. There was no legitimate expectation that opposition to proposals would not be taken into account and there was compliance with the minimum standards of consultation.

The case turned on fairly basic principles of compliance with administrative law. Although the judge acknowledged that the consultations in 2017 and 2019 were separate consultations she saw them as part of the same initiative and highlighted that there had been no suggestion that the guidance given in the 2017 consultation would apply to only some of the proposals submitted. Neither, she said, was their any indication that that guidance had been withdrawn by the time Marine Scotland accepted the revised new proposal. Although guidance does not by itself have force of law, there is a legitimate expectation that authorities will follow it, only depart from it with good reason, and justify any departures. In this case, the Scottish Government had departed without any cause or justification.

In response to the Ministers’ claim that they did not need to assess the new proposal against the original criteria, the judge stated that an ordinary reading of the text did not support this. The purpose of the guidance was not only to decide which proposals should go forward to consultation, but to determine which pilots should go forward. Although Marine Scotland were obliged to take account of consultation responses, they also had to assess the proposal against the guidance, and in not doing so acted irrationally in their decision-making.

Although not obliged to, the Scottish Government had given some simple reasons for not proceeding with the new proposal in the 2020 outcome report, but in the assessment of the court, these were not adequate as they did not deal with the ‘substantial questions’ at issue. Similar to the principle of consultation law that says even if consultation is not legally required, if done, it must be legally compliant; even if there is no duty to give reasons, if they are given, they must meet the legal standards.

Similar to McHattie v South Ayrshire last year the defendant argued that though they had been found against, the court should exercise its discretion not to give remedies on the grounds that the situation had moved on, and there was already a venue for further discussion. The Court rejected this argument, agreeing with the claimants that they were entitled to have their proposal properly considered by the administration.

For consultors, the case is a salient reminder of several points. Firstly, if you issue guidance criteria against which to assess proposals or responses then you will be expected to abide by them, even if the consultation is in multiple phases- unless you both make it clear that the guidance no longer applies and justify the decision. Secondly, it’s a reminder of the importance of being aware of the overall narrative of your engagement exercise, and how it will be seen from the outside. Finally, it’s another reminder from the Scottish Courts (although applicable across the UK) that the court’s primary interest is justice, and they will not exercise their discretion not to give relief merely because it is inconvenient to the consultor.

About the Author

Stephen serves as the Institute’s Legal and Parliamentary Officer. Before joining the Institute Stephen studied Law at Bangor University and pursued a Masters’ degree in Aviation and Space Law at McGill University in Montreal. After this, he returned to London and was called to the bar in 2016 at the Honorable Society of Gray’s Inn, before deciding not to go into practice and move towards public policy work instead. Within the Institute, Stephen provides legal, political and policy analysis of UK and global current affairs of interest to consultors and consultees.

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