Court refuses petition for judicial review on catching sandeel for commercial purposes in 2022

In Sunbeam Fishing Ltd v Secretary of State for Environment, Food and Rural Affairs, the owner and operator of a sandeel fishing vessel argued that the secretary of state’s decision was unlawful in both substance and timing, and sought to ensure the same illegalities would not affect the UK fleet’s ability to catch sandeel in 2023.

The petitioner had fished for sandeel using a vessel for many years in shallow water at the edge of the Dogger Bank area and similar locations in the North Sea. The species was fished mainly for use in animal feed and fertiliser, and according to the petitioner represented about 2.7% of the total catch in the North Sea up to the effective closure in 2021.

They maintained that sandeel stocks were stable and capable of exploitation within guidelines issued by the intergovernmental marine science organisation dealing with the sustainable use of seas and oceans, the International Council for the Exploration of the Sea (ICES). Fishing for sandeel would be profitable for it and represent a diversification from its main operations in fishing for mackerel and herring.

It was determined there was a likely need for action to ensure the sufficient protection of sandeel, based on scientific evidence that the species benefited the food web and the wider ecosystem if allowed to proliferate in the sea. The UK approach was to follow ICES advice that there should be zero catches of sandeel in various areas of the North Sea. The petitioner argued it was futile to introduce a conservation measure that would only prohibit about 2% of sandeel fishing in UK waters while leaving the remaining fishery unaffected. The quotas held by the petitioner could be seen as “possession” within the meaning of Article 1 Protocol 1 ECHR, to which it was entitled to free enjoyment.

Lord Sandison, in his decision, said of the test for interference: “The petitioner accepts, consistently with the importance of environmental protection to society as a whole and the wide margin of discretionary judgment afforded to ministers in that context, that in principle it was open to the secretary of state to take the view on the basis of the scientific and other material before him that prohibiting sandeel fishing by UK vessels would produce environmental benefit. Rather, the difficulty lies in assessing the proportionality of the contemplated benefit with the corresponding detriment to the petitioner’s possessory interests.”

He concluded: “The secretary of state’s 2022 determination which is complained of may properly be regarded as a modest but meaningful contribution to valuable maritime conservation and ecological goals. Even having full regard to its modest nature, its effect on the petitioner is not disproportionate or excessive for the reasons already stated. Lack of compensation for, or equivalent mitigations of, the closure of the fishery is in those circumstances an outcome which is within the wide margin of appreciation afforded in this area to national authorities.”

The petition was refused.