A decision taken by Marine Scotland last year to vary sea fishing licences for vessels using methods believed to be harmful to marine life has been branded unlawful by a judge.

The Court of Session in Scotland has ruled that the Scottish Government’s current approach to licencing of scallop dredging, and bottom-trawling is “unlawful”.

Lord Braid ruled in favour of the environmental charity Open Seas who brought a legal challenge to the Scottish Government’s current licencing system. Open Seas argued that the Scottish Government has a duty to take into account the marine environment and sea life when issuing licences for scallop dredging and bottom-trawling.

Written ruling

James Findlay KC said at the conclusion of the judicial review hearing that the charity was seeking a ruling from Lord Braid that would require Marine Scotland to take more account of the National Marine Plan (NMP) in all its future decisions to vary sea fishing licences.

A written ruling has now been published in which Lord Braid points out the Marine Scotland Act 2010 “expressly requires” the organisation “to take any authorisation decision in accordance with the NMP” and concludes last year’s decision was “unlawful”.

The ruling said: “The short issue for determination in this judicial review is whether, in taking decisions to vary conditions attached to sea fishing licences in terms of powers accorded to it by the Fisheries Act 2020, the respondent must have regard to the NMP.

“The petitioner, a charity whose purposes include the conservation and the environmental protection of marine species in the waters and seas surrounding the UK, argues that it must.

“The respondent disputes that: its position is that its approach of achieving the purposes of the plan through statutory instrument (SSI) is sufficient compliance with its statutory duty to act in accordance with the NMP, and that it need not take the plan into account when making individual decisions regarding sea fishing licences, of which there are many.

“Since the respondent admittedly did not consider the plan or its policies in taking the decision complained of, that is sufficient to dispose of the petition.

“For all these reasons, I have concluded that since the respondent did not consider the NMP in making the licensing variations complained of, the decision of December 30, 2022 is unlawful at least to that extent.”

A statement on the Open Seas website said:

“This decision is a win for environmental justice as Scotland’s highest court today rules in favour of our judicial review of the Scottish Government’s licensing decisions in relation to scallop dredging and bottom-trawling.

“We argued that the Scottish Government has a duty to take into account the marine environment and sea life when issuing licences for scallop dredging and bottom-trawling – and that it is failing to do so.

“Lord Braid was clear in his opinion 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.” – and the National Marine Plan requires that activities do not cause significant impacts to Priority Marine Features.”

Open Seas continued:

“Scotland’s seabed is a public asset. Healthy seas are crucial to fishing businesses and coastal communities all over Scotland.

“Today’s result vindicates the efforts of all of those who have sought to investigate, document and raise the alarm about the destructive impact of scallop dredging and bottom-trawling on Scotland’s seabeds.

The story was covered in Fishing Daily, the Independent and on the Open Seas website, amongst other outlets.

You can read the full judgement here.