Fish Legal successfully challenged a decision by the Scottish Government to refuse to sanction an inshore fisheries pilot designed to assess the comparative economic and environmental performance of fishing with low impact static gear compared with trawled fishing gear.
There has been increasing concern that inshore trawlers which target Nephrops, a large prawn, have a very high level of bycatch of commercial fish species and that this has contributed to the collapse of inshore fish populations on the west coast of Scotland over the last 30 years.
The pilot, which was planned for the Inner Sound of Skye was an opportunity to see whether a policy to restrict the use of mobile or trawled gear in favour of static creel fishing would lead to a recovery of the inshore fishery as well create more jobs.
The Scottish Government encouraged local fishermen to submit proposals for inshore Pilots under their 2017 Inshore fishery Pilot programme.
The guide to the programme stated that Pilot proposal would be assessed on the basis of specified criteria including what evidence the planned Pilot would contribute to improve fishery management.
In this case the Scottish Government rejected the Inner Sound proposal because it was not popular with the trawler community and they failed, unlawfully to apply their own criteria to determine the matter.
The judge that heard the case on 17 December 2020 ruled that Scottish Ministers acted unlawfully in blocking the proposed no-trawler scheme. Lady Poole’s judgement stated that “as a matter of law, the criteria as material considerations had to be taken into account, and were not’ and “has a conclusion so unreasonable no reasonable authority could have come to it”, and that it was considered, ‘that frustrating the legitimate expectation I have found to exist is a misuse of the Scottish Ministers’ powers,’ and that their decision was ‘irrational.’