An appeal by the Scottish government against the 2023 ruling that its failure to ban trawling and scalloping was in contravention of Scotland’s National Marine Plan, which sets out steps to protect the marine environment, was heard in Scotland’s highest civil court on 20 March.

The environmental group Open Seas sought a judicial review of the Scottish government’s decision in December 2022 not to vary the conditions attached to a fishing licence so as to ban bottom trawling and scallop dredging in certain areas. It won its case, and the failure to change the licence conditions was ruled unlawful.

The Scottish government appealed against that ruling, and the case was heard last week in the Court of Session in Edinburgh.

The Marine (Scotland) Act 2010 introduced the concept of marine planning. The act requires ministers to produce a national plan for Scottish waters to ensure that marine activity is sustainable.

Scotland’s National Marine Plan, produced in 2015, provides that use of the marine environment ‘must not result in significant impact on the national status of priority marine features’ in all inshore and offshore waters.

Open Seas claims that the 2010 act requires ministers to make any decision regarding fishing vessel licensing conditions in accordance with the policies of the National Marine Plan – but that on 30 December, 2022, ministers failed to change Nephrops licence conditions relating to bottom trawling and scallop dredging.

Rather than make them illegal, the variations only imposed a 65-day limit on scallop dredging in certain areas during the first quarter of 2023, and a 20t Nephrops catch limit in certain areas during that same period.

Ministers do not agree that they must consider the National Marine Plan when varying the licence conditions. They say this would be impractical and that, in any event, they are fulfilling their obligations under the plan by implementing relevant secondary legislation. They contend that they did not need to consider the plan when making the variation decision, and therefore did not do so.

But Open Seas contend that dredging and trawling are likely to create a significant impact on the national status of priority marine features in the areas where bottom trawling and scallop dredging are used, and that the conditions allowing them are contrary to National Marine Plan policy.

Lord Braid said in his 2023 ruling that the Scottish government’s legal duty ‘expressly requires it to take any authorisation decision in accordance with the National Marine Plan unless relevant considerations indicate otherwise’. He agreed with the Open Seas case that the government had acted unlawfully.

A spokesperson for the Scottish government told FN: “We are awaiting publication of the judgement, which we will study closely before making further comment.”

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 £3.50 here

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