Marine Scotland licensing deemed ‘unlawful’

Legal challenge by Open Seas calls issuing of licences to scallop dredgers and bottom trawlers into question

The Scottish government was still considering its reaction as FN went to press, nearly a week after a judge ruled that its licensing of scallop dredging and bottom trawling was ‘unlawful’.

The judge ruled that Marine Scotland ‘did not consider the National Marine Plan in making the licensing variations complained of ’ and that the decision to issue licences ‘is unlawful at least to that extent’.

The shock ruling came after environmental NGO Open Seas made a petition for a judicial review, arguing that Marine Scotland was issuing licences for fishing vessels undertaking dredging and trawling that risked damage to sensitive habitats that the government had committed to protect under Scotland’s National Marine Plan.

The original petition by the group included a request that the judge immediately suspend fishing licences issued to vessels undertaking scallop dredging and bottom trawling.

The petition argued that the licences issued meant that the Scottish government was failing in its duty to protect 11 different marine features out of the 81 named within the Marine Plan, including flame shell beds and native oyster beds.

Lawyers representing the Scottish government argued that the licences issued did not depart from the Marine Plan. They also provided a timetable for the roll-out of further protection of the key marine features via the current HPMA exercise, which they said was in process.

The timetable provided for this suggested that results of the current HPMA consultation would be analysed and published this month, followed by a full public consultation that would lead to legislation by Holyrood in December 2024, and formal protection of the marine features coming into place in early 2025.

The Scottish government further argued that any unilateral action it took with respect to licensing could not be applied to other UK vessels fishing in Scottish waters.

This latter argument was quickly dismissed by the judge, who said that the MMO and Northern Irish authorities would quickly follow suit, replicating any amendment made by Marine Scotland to licences for Scottish vessels.

Speaking for Open Seas after the judgement, Phil Taylor said: “This decision is a major win for environmental justice and everyone who has campaigned to protect our seas for many years, divers who have seen the problem with their own eyes, and those within communities who have bravely spoken out, including many fishermen.

“But it is a hollow victory, because whilst it shows we were right to make this challenge, it reveals that the Scottish government has been unlawfully neglecting its legal duty to protect our seas for the last eight years.

“By failing to bring fisheries into the modern planning system, Marine Scotland has been failing both the industry – exposing it to wider issues like the spatial squeeze – and the environment by allowing high-impact sectors like scallop dredging to damage these vital habitats.”

However, the judgement made no recommendations as to how fishing licences issued by Marine Scotland should be amended to meet the requirements of the National Marine Plan.

A further judgement is expected in the coming weeks that will address this issue, providing guidance as to what the courts require of Marine Scotland to make the fishing licences it issues ‘legal’.

The ruling is also likely to impact on the ongoing judicial review that is due to be heard in court on 5 September. This legal challenge, by the Scottish Fishermen’s Organisation and Shetland Fishermen’s Association, is over the updated economic link requirements on their licences, requiring them to land larger percentages of their catch to Scottish processors.

Marine Scotland declined to make any comment on the ruling, whilst it awaits the substantive detail expected in the follow-up hearing.

Likewise, Elspeth Macdonald, CEO of the Scottish Fishermen’s Federation, told FN: “We understand that the judicial review is still live, and that the court will set out its findings in a more detailed order. We expect that the Scottish government will then be in a position to speak to industry about any implications for how it carries out licensing.”

This story was taken from the latest issue of Fishing News. For more up-to-date and in-depth reports on the UK and Irish commercial fishing sector, subscribe to Fishing News here or buy the latest single issue for just £3.30 here.

Sign up to Fishing News’ FREE e-newsletter here.