Greenpeace Ltd, R (on the application of) v The Secretary of State for the Environment & Anor, Court of Appeal - Administrative Court, January 18, 2016, [2016] EWHC 55 (Admin)

Resolution Date:January 18, 2016
Issuing Organization:Administrative Court
Actores:Greenpeace Ltd, R (on the application of) v The Secretary of State for the Environment & Anor
 
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Case No: CO/338/2015

Neutral Citation Number: [2016] EWHC 55 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 18 January 2016

Before :

MRS JUSTICE ANDREWS DBE

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Between :

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Ms Kassie Smith QC and Mr James Bourke (instructed by Harrison Grant Solicitors) for the Claimant

Mr James Segan (instructed by The Government Legal Department) for the Defendant

Ms Sasha Blackmore (instructed by Browne Jacobson) for the Interested Party

Hearing dates: 24 and 25 November 2015

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JudgmentMrs Justice Andrews:

Introduction

  1. The Common Fisheries Policy (``CFP'') is a Community system for the conservation of marine biological resources and the management of fisheries and fleets exploiting such resources, which was first established by Council Regulation EEC No 170/83. The most recent reform of the CFP by the EU legislature came about in December 2013, following a period of more than four years' negotiations. Among the many issues that the reforms have sought to address are the depletion of stocks of particular fish, such as cod, through over-fishing, and the wasteful practice of discarding good fish into the sea.

  2. I adopt, without repeating it here, the clear and helpful exposition of the history of the CFP set out by Cranston J at paragraphs [15]-[26] of his judgment in R (United Kingdom Association of Fish Producer Organisations) v Secretary of State for Environment, Food and Rural Affairs [2013] EWHC 1959 (Admin), referred to hereafter as ``the UKAFPO case''.

  3. Until 31 December 2013 the basic Regulation governing the CFP was Council Regulation 2371/2002, (``the 2002 Regulation''). In order to implement the reforms, that Regulation was repealed and replaced with effect from 1 January 2014 by Regulation (EU) No 1380/2013 (``the 2013 Regulation'').

  4. One important aspect of the CFP is the allocation of fishing opportunities, defined in the 2002 Regulation as ``a quantified legal entitlement to fish, expressed in terms of catches and/or fishing effort''. The same definition remains in place under Regulation 1224/2009, (``the Control Regulation'') Article 4(32). An entitlement to fish quantified by the weight of permissible catches of relevant stock is more commonly referred to as ``quota'', whereas ``fishing effort'' relates to the amount of time that a vessel is permitted to spend fishing in a particular fishery or fishing zone. Each year, the EU Commission proposes to the Council how fishing opportunities should be divided among the Member States. Each Member State is then responsible for allocating those opportunities to vessels registered at its ports.

  5. This case is concerned with the interpretation and effect of Article 17 of the 2013 Regulation, which is entitled: ``Criteria for the allocation of fishing opportunities by Member States''. It provides as follows:

    ``When allocating the fishing opportunities available to them, as referred to in Article 16, Member States shall use transparent and objective criteria including those of an environmental, social and economic nature. The criteria to be used may include, inter alia, the impact of fishing on the environment, the history of compliance, the contribution to the local economy and historic catch levels. Within the fishing opportunities allocated to them, Member States shall endeavour to provide incentives to fishing vessels deploying selective fishing gear or using fishing techniques with reduced environmental impact, such as reduced energy consumption or habitat damage.''

  6. The Claimant (``Greenpeace'') is a well-known campaigning organisation which has as its main object the protection of the natural environment. Greenpeace is independent of governments and businesses, and is widely recognised in the international arena for its environmental expertise.

  7. The Interested Party, the Marine Management Organisation (``MMO'') is an executive non-departmental public body, established and given powers under the Marine and Coastal Access Act 2009 to bring together key marine decision-making powers and delivery mechanisms. Its statutory purpose is to make a contribution to the achievement of sustainable development. The Secretary of State has a statutory power to enter into agreements with the MMO authorising it to perform any of his or her marine functions, and has exercised that power to delegate a number of important responsibilities to the MMO.

  8. The sole issue for determination in this claim is whether, as Greenpeace contends, the Secretary of State erred in law by deciding, on 24 October 2014, that the UK's existing system of allocation of fishing opportunities complies with the requirement in Article 17 of the 2013 Regulation to use transparent and objective criteria of an environmental, social and economic nature. The decision was taken following what was described by the Department for the Environment, Food and Rural Affairs (``Defra'') as an ``informal consultation on proposals for allocating Fixed Quota Allocation units to 10 metre and under-licences in the English fleet''.

  9. For the reasons set out in this judgment, I have had no difficulty in concluding that the decision under challenge in this claim was lawful, and that the system of allocation of fishing opportunities does comply with Article 17, whose provisions are clear and unambiguous.

  10. Before addressing the specific legal arguments, it is necessary to set out sufficient of the factual background to put them into context. The evidence served by the parties to this claim comprises three witness statements from Mr John Sauven, the Executive Director of Greenpeace, and a statement from Mr Griffin Carpenter of the New Economics Foundation, on behalf of Greenpeace; two witness statements from Mr Nigel Gooding, a senior civil servant employed by Defra as Head of Sea Fisheries and Conservation, on behalf of the Secretary of State; and two witness statements from Mr Kevin Williamson, who is the lead statistician in the MMO working within the area of fisheries statistics. Mr Gooding and his predecessor Neil Hornby led the work carried out by the team of civil servants who were responsible for the implementation of the obligations laid upon the UK following the introduction of the 2013 Regulation.

  11. I have also read a witness statement from Mr Stewart Harper, the Managing Director of North Atlantic Fishing Company Ltd (``NAFC'') dated 9 September 2015. Permission to adduce that evidence was granted by Picken J on terms that NAFC bear its own costs. NAFC has not sought leave to intervene in the claim; it wished to put in the evidence in order to address certain aspects of Mr Sauven's evidence which it regarded as painting an inaccurate or unfair picture. NAFC charters, controls and operates a British registered fishing trawler named the Cornelis Vrolijk Fzn which, according to Mr Sauven, holds a significant percentage of the English fishing quota. Mr Harper explains that although, in rounded up terms, the Cornelis Vrolijk Fzn holds 23% of the English FQA units, that figure represents only 5.53% of the FQA units within the UK fleet as a whole.

  12. All fishing vessels registered at ports within the UK are required to be licensed. Terms and conditions may be imposed on the licence, which, for example, may restrict the activities of the licensed vessel, or prevent it from using fishing gear which is environmentally damaging. Licences are divided into categories which give different levels of permission in terms of what species the vessel may fish for. Only those vessels with a Category A licence may fish for all quota species. It has been some years now since the UK decided that it would no longer grant fresh licences, so fishing vessels registered in English, Welsh, Scottish or Northern Irish ports may only operate by acquiring an existing licence from a vessel which has been scrapped, or which for some other reason no longer trades. The licensing system is kept under review and is adapted to reflect EU legislative requirements and domestic UK policies.

  13. The English fishing fleet is divided between vessels that are over and under 10 metres in length. Many, though not all, of the former are members of fish producer organisations (``POs''). Council Regulation (EU) No 1379/2013 makes specific provision for the recognition of POs and sets out the objectives that they are required to pursue. These include environmental objectives, such as reducing the environmental impact of fishing through measures to improve selectivity of fishing gears. Those vessels which are members of POs are referred to in the industry as ``the sector'' whilst the over 10m vessels which do not belong to a PO are referred to as ``the non-sector''. The vessels under 10m are referred to as the ``inshore fleet''; a relatively small number of these are members of POs. This fleet includes newer vessels known as ``super under-10s'' which have a much greater catching capacity than the traditional small fishing vessels. Some of the inshore vessels use passive gears, others use towed gear.

  14. As at 1 January 2015 the UK inshore fleet numbered 5049 registered vessels (representing 9% of the total tonnage of the UK registered fishing fleet at that date). Of these, only 3256 (64%) had any fishing activity recorded during 2014. The proportion of active and inactive registered 10m and under vessels has been much the same each year since 2007. By contrast, around 90% of the registered over 10m vessels are active each year.

  15. The majority of landings by the inshore fleet are of non-quota stocks, particularly shellfish. In 2014 almost half the active inshore fleet (approximately 48%) did not rely on quota species as their sole or main source of income from fishing; only 14% could be regarded as solely reliant...

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