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Cite as: [2005] EWCA Civ 1656

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Neutral Citation Number: [2005] EWCA Civ 1656
C1/2005/2282

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(MR JUSTICE STANLEY BURNTON)

Royal Courts of Justice
Strand
London, WC2
31st October 2005

B e f o r e :

LORD JUSTICE MUMMERY
LORD JUSTICE LAWS
LORD JUSTICE WALL

____________________

GREENPEACE LTD Applicant/Claimant
-v-
SECRETARY OF STATE FOR THE ENVIRONMENT, FOOD AND RURAL AFFAIRS Respondent/Defendant

____________________

(Computer-Aided Transcript of the Palantype Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)

____________________

MR JON TURNER (instructed by Messrs Harrison Grant) appeared on behalf of the Applicant
MR RHODRI THOMPSON QC (instructed by Defra Legal Services) appeared on behalf of the Respondent

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. LORD JUSTICE LAWS: This is an appeal, with permission granted by the judge below, against a decision of Stanley Burnton J, given in the Administrative Court on 10th October 2005 by which he refused the application made by the appellants, Greenpeace, by way of judicial review for an order to quash the South-west Territorial Waters (Prohibition of Pair Trawling) Order 2004 ("the order"). The order prohibits the use of specified pair trawl nets by UK fishing boats within 12 nautical miles off the south-west coast of England.
  2. The case is about dolphins; or rather about the aspiration shared by the appellant, Greenpeace, and the Secretary of State to reduce the numbers of dolphins which are unintentionally killed by the process of fishing.
  3. In paragraph 3 of his judgment, Stanley Burnton J said this:
  4. "There is, in my judgment, no real difference between the motivation of Greenpeace and that of the Department of Environment, Food and Rural Affairs (Defra). Greenpeace seeks to reduce the numbers of cetaceans killed unintentionally by fishing. It is clear to me on the evidence that Defra shares this aim. Perhaps unusually, in this case the dispute between them is as to means rather than ends. As I said during the hearing, the witness statements of Mr Bradshaw and Mr Hynes (and particularly the latter's second witness statement) were commendably candid, as Mr Bradshaw had been in the radio interviews to which I refer below. The motive for the Order was the reduction of cetacean deaths. However, Greenpeace believes and contends that far from having this effect, the Order will increase cetacean deaths or is liable to do so. Hence its second claim in these proceedings."
  5. What was called the second claim was the only live claim in the proceedings before Stanley Burnton J and gives rise to the issues on this appeal. The judge declined to award costs to the successful respondent, the Secretary of State, and his refusal to do so is challenged in a respondent's notice.
  6. The legal and factual background to the case, including the events leading to the making of the order and the making of the order itself, are fully and carefully described by the judge in paragraphs 5 to 55 of his judgment. I reproduce these paragraphs in their entirety in an appendix to this judgment.
  7. As the judge also records, paragraph 60, although he was to regard it as not relevant to his decision, that since the prohibition has been in place the number of pairs of vessels in the United Kingdom element of the fishery operating outside 12 miles has decreased from seven in 2003/2004 to two in 2004/2005. I should also notice the Secretary of State's evidence that preliminary results suggested that the bycatch rate in the latest season, that is 2004/2005, was about half of that in the previous season and that strandings of common dolphins had decreased from 93 in the first quarter of 2004 to 43 in the first quarter of 2005.
  8. As the judge recorded at paragraph 62, the case for judicial review of the order was put below by counsel for the appellants on two grounds: (1) irrationality and (2) a failure to have regard to a material consideration, that is to say the opinion advanced in the consultation process to the effect that the order would actually have a negative effect because displacement of fishing effort to beyond the 12-mile limit would result in a greater number of bycatch deaths. The judge categorised this latter ground of challenge as procedural, although in conventional judicial review terms a failure to take account of a material consideration is, in truth, a species of Wednesbury irrationality; and there is nothing here in difference between substance and procedure. However, I do not for my part criticise the judge. I think it would be pedantic to do so. His approach was helpful given the circumstances of the case.
  9. The irrationality challenge, so called, was unpacked by the learned judge as follows (paragraph 67):
  10. "It may be helpful to regard the substantive ground of irrationality as having two aspects. The first is that there was no or no sufficient basis for the exercise of the statutory power to make such an order; in other words, the Order is strictly ultra vires. The second assumes that the necessary basis for the statutory power was satisfied, but asserts that it was irrational to exercise it. There is, however, no dichotomy between these aspects."
  11. This first aspect has been developed by the appellants in their grounds and skeleton argument in this court into a full-blown challenge to the vires of the order. Mr Thompson QC for the Secretary of State has thought it right to characterise this development as impermissible and opportunistic. For his part, the judge below accepted that "there was no substantial scientific basis for the [order]" and he proceeded to explain that conclusion. The Secretary of State's respondent's notice contends (leaving aside the issue of costs) that relief should in any event be refused as a matter of discretion because the appellant's concerns about displacement of bycatch deaths have not in fact eventuated. But there is no challenge to Stanley Burnton J's finding of fact that there was no substantial scientific basis for the order.
  12. Before arriving at his conclusions, the judge made another finding to which I attach some importance. Paragraph 66:
  13. "I find that the Minister was genuine in seeking to reduce cetacean mortality. The Order was political in that it would assist the UK in pressing for EU action, which, given the restrictions on unilateral action imposed by the CFP, is the only really effective action that can be taken. Quite apart from Mr Bradshaw's, Mr Harris's and Mr Hynes's witness statements, I draw that conclusion from Mr Bradshaw's disarmingly candid radio interviews (put in evidence by Defra) and his letter to the Secretary of State, which could not have been written for public presentational purposes."
  14. However, the judge below rejected the first aspect to the challenge which had been articulated in terms of irrationality. He said:
  15. "70. However, in my judgment the starting point must be the enabling statute. When considering whether the Minister had the power to make the order, it is pertinent to bear in mind that Parliament did not impose any express requirement as to the evidence or information available to the Minister when exercising his power under section 5A. He is not required, for example, to be reasonably satisfied that the measure he introduces is necessary for the preservation of a species or a substantial reduction in mortality. The statutory power is qualified by the purpose for which it is exercised. Section 5A of the 1967 Act confers power on the Minister to impose restrictions such as those contained in the Order 'for marine environment purposes', including the purpose of 'conserving fauna dependent on, or associated with, a marine or coastal environment'. It follows from what I have said above that the power under section 5A of the Act was exercised for that purpose. It follows that, provided the measure introduced was one which could sensibly be considered as achieving that purpose, the Minister had the power to make the Order. To express the position somewhat differently, the power had to be exercised reasonably, and fairly."
  16. The judge held that, whether he considered only the Minister's reasoning process or considered also what he called (paragraph 71) "the anticipated effect of the legislation in the factual matrix in which it operates", the order was rationally made. He said (paragraph 72):
  17. "If I consider the Minister's reasoning process, in my judgment the Minister did exercise the statutory power reasonably. He was entitled to make an order that had some, albeit probably limited, effect. Provided there was no displacement of fishing effort, it was to be expected that the Order would reduce cetacean bycatch."

    Then he said this in the next paragraph:

    "73. If I take into account facts beyond those referred to in the Defendant's witness statements, I would place weight on the bycatch findings for years before 2003/2004. The figures for that season were exceptional as compared with previous years, and when the Order was made it was not known whether they presaged long term changes or were indeed anomalous."

    The judge also rejected the second aspect of the challenge, which, as I have said, he had described as procedural. The reasoning is to be found in paragraph 72 as follows:

    "The evidence that the Minister expressly considered the displacement of effort concerns expressed in the consultation is weak, although it was clearly put in the summary of responses to the consultation. However, he considered the relevant issues: whether UK boats affected by the Order, which might otherwise transfer their effort outside the 12 mile zone, would be deterred from fishing there by safety concerns, and the power he could exercise to prevent UK boats from fishing beyond the 12 mile zone by introducing a system of licensing, which in the event has so far proved unnecessary. That safety concerns were real was demonstrated by the letter of 17 November 2004 from the Scottish Pelagic Fishermen's Association, and, to a lesser extent, from the letter from MacKinnon's of the same date. I have no doubt that he would have pursued a system of licensing if the numbers of UK boats fishing beyond the 12 mile zone had been sufficient to give cause for concern. It was not suggested that the UK does not have power to introduce such a licensing system. Similarly, it was not unreasonable to seek to introduce a UK measure that would demonstrate to Member States and the EU Commission that this country considered cetacean bycatch to be a serious problem that should be the subject of effective measures, and that this country would do what it could to reduce it. That the Commission took a different view of such a measure does not demonstrate that it was perverse to introduce it. What steps would be taken by the UK as part of the 'stepwise' strategy was far from worked out, but I do not think that the Minister is required to show that he had specific action in mind."
  18. The two grounds of assault against the order are pursued on this appeal. The first, as I have said, is expressly stated as a vires challenge, with irrationality put as an alternative. This is how that part of the case is articulated in the appellant's skeleton argument (paragraph 4(1)):
  19. "The enabling statute pursuant to which the order was made, on its natural interpretation and in the light of EC law, permits measures to be taken to restrict fishing activities providing that these are effective conservation measures based on sound science; however, the purpose of the contested order was not that it should be an effective conservation measure to reduce dolphin mortality from fishing activities, and nor did the Minister have any evidential basis for thinking that it would have this effect; in those circumstances, the decision to make the order was outwith the legislative power conferred by the enabling statute, and/or it was an unreasonable exercise of the legislative power;"
  20. The second part of the case, the procedural challenge, is pursued very much as it had been before Stanley Burnton J. I should say at this stage that there has been a great deal of huffing and puffing in this case by each side about the conduct of the other. A large proportion of the appellant's counsel's skeleton argument is taken up with complaints about the Department's response or failure to respond to correspondence. The appellants are at pains to emphasise the lateness of important evidence served by the respondent department after an adjournment on 20th July to allow the service of additional evidence. They refer to the witness statements of Mr Bradshaw, the Minister, dated 4th August 2005, and Mr Hynes of the Department's Sea Fisheries Conservation Division, dated 15th August 2005. The respondents, for their part, say that the appellant's main ground of challenge was an alleged failure by the Secretary of State to fulfil certain of the United Kingdom's obligations arising under the EC Habitats Directive and this was always doomed to failure and was abandoned shortly before the case came before Stanley Burnton J. They say that the so called procedural point was not pleaded in the grounds and only emerged on the first day of the hearing. The case was never put or pleaded below as a vires challenge and, in their grounds supporting their own application for leave to appeal by respondent's notice to the judge's refusal to award them any costs, they accused the appellants of bombarding the department with "a stream of aggressive correspondence".
  21. While there is something in both sides' complaints, the whole farrago is, to my mind, unseemly and unhappy. If anything, Mr Thompson's skeleton argument for the Secretary of State is more aggresive than his opponent's. But I mention these points only to get them out of the way for the time being. Some of them may have some relevance on the cross appeal as to costs. I propose to deal directly with the vires challenge as it is now formulated, though even there, I should say in passing, as Mr Thompson submitted (paragraph 12 of his skeleton argument) the appellants are in breach of the relevant provisions of the Civil Procedure Rules requiring notice and permission in relation to new points sought to be taken. I need not dwell on this since he has abandoned the point and rightly so; there is no conceivable prejudice at this stage and the responsible approach now is surely to have the substantial issues in the case properly settled by the court's adjudication.
  22. I turn then to the vires issue. The stated vires for the order is the Sea Fish Conservation Act 1967 as amended, to which the judge made some reference at paragraph 8 of his judgment, which is of course in the appendix. I should set out Section 5(1), which gives the context for Section 5A, the latter being the critical provision:
  23. "5(1) Subject to the provisions of this section, the Ministers may by order prohibit in any area specified in the order and either for a period so specified or without limitation of time --
    (a) all fishing for sea fish; or
    (b) fishing for any description of sea fish specified in the order; or
    (c) fishing for sea fish, or for any description of sea fish specified in the order, by any method so specified,
    "by any fishing boat to which the prohibition applies; and where any fishing boat is used in contravention of any prohibition imposed by an order under this section, the master, the owner and the charterer (any if) shall each be guilty of an offence under this subsection."

    Then Section 5A provides:

    "(1) Any power to make an order under section 5 above may be exercised for marine environmental purposes.
    "(2) The power to make an order under section 5 above by virtue of this section is in addition to, and not in derogation from, the power to make an order under that section otherwise than by virtue of this section.
    "(3) In this section 'marine environmental purposes' means the purposes--
    (a) of conserving or enhancing the natural beauty or amenity of marine or coastal areas (including their geological or physiographical features) or of any features of archaeological or historic interest in such areas; or
    (b) of conserving flora or fauna which are dependent on, or associated with, a marine or coastal environment."
  24. In light of the way the vires case is now put, I should also cite the Common Fisheries Policy Regulation 2371/2000. Article 9 is headed "Member State measures within the 12 nautical mile zone". Article 9.1 provides:
  25. "A Member State may take non-discriminatory measures for the conservation and management of fisheries resources and to minimise the effect of fishing on the conservation of marine eco-systems within 12 nautical miles of its baselines provided that the Community has not adopted measures addressing conservation and management specifically for this area. The Member State measures shall be compatible with the objectives set out in Article 2 and no less stringent than existing Community legislation."

    The cross reference to Article 2 is important for the appellant's argument. Article 2 is headed "Objectives" and provides as follows:

    "1. The Common Fisheries policy shall ensure exploitation of living aquatic resources that provides sustainable economic, environmental and social conditions.
    "For this purpose, the Community shall apply the precautionary approach in taking measures designed to protect and conserve living aquatic resources, to provide for their sustainable exploitation and to minimise the impact of fishing activities on marine eco-systems. It shall aim at a progressive implementation of an eco-system-based approach to fisheries management. It shall aim to contribute to efficient fishing activities within an economically viable and competitive fisheries and aquaculture industry, providing a fair standard of living for those who depend on fishing activities and taking into account the interests of consumers.
    "2. The Common Fisheries Policy shall be guided by the following principles of good governance:
    (a) clear definition of responsibilities at the Community, national and local levels;
    (b) a decision-making process based on sound scientific advice which delivers timely results;
    (c) broad involvement of stakeholders at all stages of the policy from conception to implementation;
    (d) consistence with other Community policies, in particular with environmental, social, regional, development, health and consumer protection policies."
  26. Mr Turner's principal vires argument on behalf of the appellants, certainly the argument having the sharpest focus, goes like this: (1) by force of Article 9 of the regulation, Section 5A must be read with Article 2 and is qualified by it. (2) Accordingly, it is a condition of the legality of an order made under Section 5A that it be based on "sound scientific advice", see Article 2.2(b). (3) But the judge found, and there is no challenge to it, that "there was no substantial scientific basis for prohibition": judgment paragraph 68. (4) Accordingly, a condition for the order's legality was not met and the order is ultra vires.
  27. In my judgment this is a bad argument. No doubt the order was made within Article 9. Article 2.2(b) of the regulation, however, is expressed to be no more nor less than a principle of good governance for the guidance of the CFP. This provision it too general to constitute a distinct qualification of the terms of Section 5A. More important, it does not purport to do so. Nor does Article 9 turn it into such a qualification. If, which I do not at all suggest, the order were in some way an affront to the CFP regulation, the appropriate challenge would not be to the domestic vires of the order by reference to Section 5A but to its asserted incompatibility with the CFP regulation. That is not the nature of the challenge that has been brought. I doubt, for what it is worth, whether there would be any basis for it. Mr Turner has, in any event disavowed it.
  28. It seems to me therefore, in summary, that it is simply not possible to read the relevant terms of the regulation as qualifying the sense to be attributed to Section 5A. It follows that the vires of the order is to be judged as a matter of domestic law by reference to Sections 5 and 5A as being unqualified by the regulation. On that footing it seems to me that Stanley Burnton J dealt with its interpretation correctly, see paragraph 70 of the judgment which I have read.
  29. Mr Turner has some subsidiary points in support of the vires argument though I am not sure that he would accept the adjective "subsidiary". First, as I understand it, something is sought to be built out of the proposition that the order was meant to be a step in a political strategy: the strategy being, if I may put it this way, to exert moral pressure on the EU. But this goes nowhere. The judge found, as I have shown (paragraph 66), that "the Minister was genuine in seeking to reduce cetacean mortality." That was the aim or purpose of the measure. If the Government aspired, in addition to or as part of that purpose, to influence the EU commission or to set an example, that cannot in my judgment begin to infect the vires of the order.
  30. It is next said (paragraph 38 of the appellant's skeleton) that there is something objectionable in the fact (see the judgment, paragraph 72) that the details of the so called "stepwise strategy" were "far from worked out". There is nothing in this either. As the judge said at paragraph 72, the Minister was entitled to make an order which had "some, albeit probably limited, effect". The fact that the government's aspiration to influence the EU Commission was not then and there backed up with a worked up scientific case cannot touch the vires issue. In any event, I think Mr Turner underestimates the extent to which the Minister's approach was in concrete terms. Paragraph 8 of the final regulatory impact assessment is in point. It is already set out by the judge at paragraph 52 of the judgment but I repeat it for convenience.
  31. "The Government intends therefore to take a stepwise approach to the issue of cetacean bycatch in this fishery by prohibiting the use of pair trawl gear targeting bass within 12 miles of the UK southwest coast (ICES Area VIIe) followed by a request to the European Commission, under Article 9 of Council Regulation 2371/2002, for this measure to be applied to all Members States' vessels. A licensing scheme for the fishery outside 12 miles will also be drawn up. The prohibition would be targeted solely at pelagic pair trawling for bass..."
  32. Now it is true, as Mr Turner submitted this morning, that the Commission can only act on the basis of sound scientific evidence or, at the least, they must be guided by sound scientific evidence. On the appellant's case there was no such evidence at the time these matters were being considered. But that cannot in my judgment invalidate the Minister's approach as a matter of law. He was seeking to put some pressure on the Commission. What its outcome or out-turn would be no doubt lay unknown in the future.
  33. I conclude that the vires challenge fails.
  34. I turn to the next part of the case which travels into the procedural challenge. It is said that the minister did not take account of the concerns which had been expressed in the consultation exercise to the effect that the order would displace fishing effort into areas of higher bycatch beyond the 12-mile zone, thus risking an increased dolphin mortality rate. This is plainly no part of what may be called a black letter vires argument. To the extent that the appellants advance an argument of that kind, I have dealt with it and in my judgment it fails. The point now taken is a pure Wednesbury submission: an alleged failure to have regard to a material consideration. It has a flip side: the appellant says that, had this been taken into account, the Minister should have concluded that the order would or might have been counter-productive. That is the relation, I think, in which the so-called rationality argument here and the so called procedural argument stand towards each other.
  35. A Wednesbury argument in a context such as that of an order under Section 5A in my judgment faces formidable difficulties. First, the decision-maker is generally the master of the matters he will treat as relevant and the depth or detail into which he will go: see the decision of the New Zealand Court of Appeal in CREEDNZ v Governor General [1981] 1 NZLR 172, applied in English law by the House of Lords in Re Findlay [1985] AC 318. See also Khatun v London Borough of Newham [2005] QB 37 55F in this court and NHS v Department of Health [2005] EWCA Civ 154, also in this court.
  36. Secondly, although there is undoubtedly power in the court to quash such an order, and in the case of a proved want of vires the court will do so unless some exceptional feature dictates otherwise, it has to be borne in mind that the order was subject to a Parliamentary approval procedure (albeit the negative resolution procedure: see Section 20(5) of the 1967 Act) and the subject matter of the order was a delicate and strategic political issue. In those circumstances the court will be very slow to strike down the measure on perversity grounds. The appellants themselves (Mr Turner's skeleton paragraph 62) rightly refer to their Lordships' House's decision in Nottingham County Council v Secretary of State for the Environment [1986] AC 240. Perhaps I may be forgiven for not setting out the text: material passages are at 247E-G and 267A-B. In fact the measure we are concerned with in this case attracted a considerable degree of support from expert consultees, precisely on the broad grounds on which the order was made. The evidence before the judge shows as much.
  37. In all these circumstances I entertain the greatest doubt as to whether it is right that the court should undertake a detailed exercise of assessment of the relative weight, wisdom or quality of points made or information provided during the course of the decision-making process. In my judgment Mr Turner would have to show something very sharp and striking properly to engage the judicial review jurisdiction.
  38. I propose accordingly to deal with this aspect of the case relatively shortly. First, I repeat for convenience the essence of the judge's finding on this part of the case:
  39. "The evidence that the Minister expressly considered the displacement of effort concerns expressed in the consultation is weak, although it was clearly put in the summary of responses to the consultation. However, he considered the relevant issues: whether UK boats affected by the Order, which might otherwise transfer their effort outside the 12 mile zone, would be deterred from fishing there by safety concerns, and the power he could exercise to prevent UK boats from fishing beyond the 12 mile zone by introducing a system of licensing, which in the event has so far proved unnecessary. That safety concerns were real was demonstrated by the letter of 17 November 2004 from the Scottish Pelagic Fishermen's Association, and, to a lesser extent, from the letter from MacKinnon's of the same date."
  40. In my judgment, it is not shown that any of this reasoning was wrong. Mr Thompson submits (skeleton argument 36a):
  41. "The papers considered by Mr Bradshaw, at the meeting on 18 November 2004 where the decision to proceed with the Order was taken, included a summary of responses where the 'displacement theory' was 'clearly put'..."

    The relevant document is quoted at paragraph 39 of the judgment, which of course appears in the appendix and I will not set it out again.

  42. Now, for his part Mr Turner has made much today of the consultation exercise. He has referred to what was said by SMRU, English Nature, the Scottish fishermen's solicitors, the LINK organisation and the RSPCA. He referred to the exiguous terms of the minute of the meeting on 19th November 2004. He attacked the judge's conclusions concerning safety in licensing which appear in paragraph 72. It is convenient to repeat this following passage from Mr Hynes' first statement, which is to be found at pages 34 and 35 of the judgment:
  43. "However, the issues arising from displacement were covered in, implicitly with the Minister, the context of the 12 mile area being of importance to some of the vessels in the UK fishery because of their relatively small size which prevented them working outside 12 miles during severe weather (mostly winter months when bycatch had been high in the 2003/04 season relative to previous seasons). In other words, displacement would not take place in practice for part of the season because of safety concerns which would stop vessels fishing completely if the 12 mile zone was not available to them. We also concluded that the ban would act as a deterrent to opportunistic fishers. The discussion then moved to progress on licensing outside 12 miles; although not recorded in the official note of the meeting, my clear recollection is that this was discussed directly after consideration of the impact of the ban on the vessels involved in the fishery because we were fully aware that restrictions had to be placed on the fishery outside 12 miles if we were to address the area where bycatch was most significant, i.e. to avoid any possible displacement effects from the ban."

    Mr Bradshaw, at paragraph 10 of his statement of 4th August, said this:

    "While I do not recall being made explicitly aware of the so called 'displacement theory' as it is now described by Greenpeace, I was aware that UK vessels fishing inside 12 miles might transfer their effort outside the 12 mile limit in the event of a ban. However, I was satisfied that safety considerations of the licensing system we proposed for any UK vessels fishing outside 12 miles would act as deterrents to the displacement of effort".
  44. Mr Turner had some very narrow points in relation to this evidence. He suggested that because of the circumstances in which it was put before the court and the lateness of its arrival there, and the gap of time between the decision and the reconstruction of these statements, we should in effect not accept what was there being said. I see no basis on which that would be a proper judicial response to evidence put forward before the High Court in judicial review proceedings as was done here. He had some points on the text. He said there were points here being made that do not appear in the minute of the meeting and that a very close reading of what is said by Mr Bradshaw, and I think also Mr Hynes, does not reveal an unequivocal statement that there would be no displacement.
  45. I have no hesitation in holding that this evidence well justifies the judge's conclusions at paragraph 72. We are not ourselves reconsidering these matters as the primary decision maker. At no time is that any proper part of the court's task. That is, of course, elementary; but I have to say that for all the world much of the very careful submissions we have listened to this morning have, as it seems to me, an underlying premise close to the proposition that we are judges of merit.
  46. In the circumstances the judge's conclusion was in my judgment well justified. There is nothing in this part of the case, whether categorised as a procedural or an irrationality challenge.
  47. In the course of argument there has been some dispute as to the proper effect, if any, of the evidence about events after the making of the order. I have already referred to paragraph 60 of the judgment, recording the reduction in the number of pairs of vessels operating outside 12 miles and the decreased rate of bycatch, as demonstrated (at least) by what the judge referred to as preliminary results. I should say that it appears from a recent SMRU report, to which Mr Turner referred, that any conclusions to be drawn from these preliminary or rough figures need to be treated with considerable circumspection. I do not propose to take time with this aspect of the case other than to say that if I had been satisfied that the order was strictly ultra vires by reference to the empowering words of the statute (read with or without the Common Fisheries Policy Regulation) this material coming into existence ex post facto would not have deterred me from quashing the order, since there is, very obviously, a high public interest in seeing that the government does not make subordinate legislation which cannot be justified under the enabling primary legislation. If, on the other hand, the appellant had succeeded only on the Wednesbury argument -- and, of course, if my Lords agree with what I have said he has not -- whether that is expressed as a procedural or irrationality challenge, I might have taken a different view as to the relevance of this later information. But it is not necessary to express any concluded opinion on such a question.
  48. There is one other matter by way, really, of postscript to the main appeal. Mr Turner had some brief submissions to make as to the judge's treatment of matters (see paragraph 73) which were not in the decision-maker's mind but which were facts which might have gone to the merits of the case. I find it necessary to say no more than that the learned judge's decision is, in my view, well justified without regard to what was there said.
  49. For all these reasons, for my part, I would dismiss the appeal.
  50. I turn to the application for permission to bring a cross appeal. This, of course, relates only to the learned judge's refusal to make any order for costs in the Secretary of State's favour in relation to the proceedings below. Stanley Burnton J gave reasons for taking that course as follows:
  51. "I confess I found the question of costs in this case by no means easy. I say 'I found' because it is a matter to which, of course, I gave some consideration before I came into court today. The matters which were influencing me were (a) the fact that it seemed to me that there was a reasonable and responsible investigation into the making of the order and that, notwithstanding the fact the Greenpeace's case shifted, there were matters of real importance to be examined. The other matter which concerned me was that the evidence of the Department had been, at the earlier stage, until the adjournment after two days of hearing, not such as to give the court confidence that the issues raised by Greenpeace had been properly addressed. I should on any basis, I think, have made a special order in respect of the costs of and occasioned by that adjournment.
    "The other matter which does concern me is that it is important that there should be free access to this court when genuine questions arise as to the lawfulness of government actions. It is true that there are a number of public interests involved in the present context, but there is, it was common ground on both sides, an important common interest in the preservation of all species of cetaceans.
    "It is unusual for there to be no order for costs in a case such as the present. Nonetheless, having regard to the matters that Mr Turner has referred to and the matter that I have just referred to, it seems to me that justice will be done if I make no order for costs in this case. That is a course which was one of the possibilities I had in mind, and, having heard submissions on both sides, I think it is appropriate in this case."
  52. Now it is elementary that the disposition of costs after a first instance hearing is pre-eminently for the discretion of the judge. Here Mr Thompson attacks the judge's reasons, first as confusing issues of standing with issues of costs and (this may be the principal aspect) he submits that the judge has not taken into account, or given any weight, to the fact that the appellants abandoned (shortly before the hearing as I understand it) the first and what may be called the principal part of their case, based on a complaint about the Secretary of State's approach to the Habitat Directive. That, in fact, was the subject of short exchanges with the judge before the judge gave the reasons which I have set out.
  53. I do not find it necessary to say any more than that I am unable to hold it to be arguable that the judge has in truth erred in principle here. Another judge might or might not have made the same order but, as my Lord Lord Justice Mummery, pointed out in the course of argument, no-one is better placed to have an accurate feel of the case, particularly in the context of a costs question, than the judge who has actually tried it. In these circumstances, I do not think that Stanley Burnton J's discretion can properly be undermined in this court and I would refuse permission to mount a cross appeal.
  54. LORD JUSTICE WALL: I am in complete agreement with my Lord's judgment, both in relation to the substantive appeal and in relation to the issue of costs. I do not wish to add anything further of my own. Like him, I would dismiss the appeal and refuse the respondent permission to appeal on the question of costs.
  55. LORD JUSTICE MUMMERY: I agree.
  56. Order: Appeal dismissed. Permission to cross appeal refused. The appellant is to pay the respondent's costs of the appeal. No order for costs in relation to the cross appeal.

    Appendix

    The Background: (a) Legal

    5. The unintended mortality of non-target species caused by fishing is known as bycatch. Her Majesty's Government is under obligations to address the problems affecting small cetaceans in relation to bycatch under the Agreement on the Conservation of Small Mammals of the Baltic and North Seas (generally referred to as ASCOBANS) and the EU Habitats Directive. ASCOBANS was concluded in 1991 and entered into force in 1994. The parties are Belgium, Denmark, Finland, Germany, Lithuania, the Netherlands, Poland, Sweden and the United Kingdom. Article 12.4 of the Habitats Directive (92/43EEC) of 21 May 1992 requires Member States to establish a system to monitor the incidental killing of (among other animals) cetaceans, and in the light of the information gathered, to take further measures to ensure that incidental capture and killing do not have a significant negative impact on the species concerned. The unintended mortality of non-target species caused by fishing is known as bycatch. Her Majesty's Government is under obligations to address the problems affecting small cetaceans in relation to bycatch under the Agreement on the Conservation of Small Mammals of the Baltic and North Seas (generally referred to as ASCOBANS) and the EU Habitats Directive. ASCOBANS was concluded in 1991 and entered into force in 1994. The parties are Belgium, Denmark, Finland, Germany, Lithuania, the Netherlands, Poland, Sweden and the United Kingdom. Article 12.4 of the Habitats Directive (92/43EEC) of 21 May 1992 requires Member States to establish a system to monitor the incidental killing of (among other animals) cetaceans, and in the light of the information gathered, to take further measures to ensure that incidental capture and killing do not have a significant negative impact on the species concerned.

    6. At the third meeting of the parties to ASCOBANS in 2001, a resolution was passed calling on competent fishery authorities to ensure that the total anthropogenic removal (a euphemism for killing) of marine mammals was reduced as soon as possible to below an unacceptable interaction. The level of unacceptable interaction was agreed as being above 1.7 per cent of the best estimate of abundance. The resolution also underlined that the intermediate precautionary objective was to reduce bycatch to less than 1 per cent of the best available population estimate. In March 2002 those targets were adopted in the Ministerial Declaration at the Fifth North Sea Conference in the Bergen Declaration.

    7. The regulation of commercial fishing is governed by the Common Fisheries Policy. The conservation and sustainable exploitation of fisheries resources are the subject of the Common Fisheries Policy Framework Regulation, Council Regulation (EC) No. 2371/2002 of 20 December 2002. Article 7 authorises the Commission to decide on emergency measures lasting no more than six months "if there is evidence of a serious threat to the conservation of living aquatic resources, or to the marine ecosystem resulting from fishing activities and requiring immediate action". If the Commission decides to take such measures, a Member State may refer them to the Council of Ministers, which may take a different decision. Article 8 authorises a Member State to take emergency measures lasting no more than three months if there is evidence of "a serious and unforeseen threat to the conservation or living aquatic resources, or to the marine ecosystem resulting from fishing activities, in waters falling under the sovereignty or jurisdiction of that member State where any undue delay would result in damage that would be difficult to repair". Such an emergency measure must be notified to the Commission, who are required within 15 working days to confirm, to cancel or to amend it. Again, the Commission's decision may be referred to the Council, which may make a different decision. Article 9 authorises a Member State to take non-discriminatory measures within 12 miles of its baselines. (All references in this judgment are to nautical miles.) Where measures to be adopted by a Member State are liable to affect the vessels of another Member State, such measures may be adopted only after the Commission, the Member State and the Regional Advisory Councils concerned have been consulted, and they may be cancelled or amended or confirmed by the Commission. Finally, Article 10 authorises Member States to take measures for the conservation and management of fish stocks but only in relation to vessels from the Member State concerned. It does not apply to measures to protect marine ecosystems, and is therefore irrelevant for present purposes.

    8. The Sea Fish Conservation Act 1967 empowers the Government to regulate commercial fishing. Section 3 authorises Ministers by order to secure that nets and other fishing gear comply with specified requirements. Section 5 authorises Ministers to prohibit all or specified fishing in a specified area. A prohibition within British fishery limits may apply to both UK and non-UK fishing boats. British fishery limits extend to 200 miles from the coast unless there is a median line within that distance. A median line is a line every point of which is equidistant from the nearest points of, on the one hand, the baseline from which the British fishery limit is measured and, on the other hand, the corresponding baselines of other countries. By section 5A, inserted into the 1967 Act by the Environment Act 1995, the power to make an order under section 5 "may be exercised for marine environment purposes", including the purpose of "conserving fauna dependent on, or associated with, a marine or coastal environment".

    The Background: (b) Factual

    9. There are numerous species of small cetaceans in the North Atlantic. In UK waters, there are 6 species of dolphin plus the harbour porpoise. It is difficult to estimate their populations with any degree of accuracy. Being mammals, they will drown if they are caught or become entangled in fishing nets underwater and are unable to free themselves. Deaths of small cetaceans in such circumstances are common.

    10. At a sufficiently high level, bycatch of small cetaceans may endanger the survival of a species. In any event, whatever the numbers of bycatch, their deaths by drowning must involve suffering and it is common ground that it should be minimised or avoided.

    11. Demersal trawling, with a net at or near the sea bed, rarely causes the death of cetaceans. Pelagic, or mid-water, trawling is generally considered to have a much greater potential to capture cetaceans. This is partly because the nets can be towed at much faster speeds, because they are not in contact with the sea bed. It may also be due to cetaceans seeking prey fish within the net, although it seems that bass is not a prey species.

    12. There are essentially two means of reducing bycatch cetacean mortality. The first is by modification to the fishing gear of the trawlers or the use of devices that prevent or deter the cetaceans from entering the net. The second is by restrictions on the fishery.

    13. The UK has been prominent in research into the levels of by-catch and its reduction. In 2000, the Sea Mammals Research Unit (SMRU), under contract to Defra, began to carry out surveys to estimate the level of bycatch in UK pelagic fishing (fishing in the open sea as distinguished from coastal fishing) and to carry out research into mitigation devices. The only fishery in which cetacean bycatch was observed was the bass fishery. It does not follow, however, that other fisheries are not involved in cetacean bycatch mortalities.

    14. Pelagic trawling involves the towing of a trawl net, which is essentially a bag net with a wide mouth that gradually tapers to a narrow tube, leading to the closed end of the net, the cod-end, where the fish are collected. Most sea bass fishing is carried out by pair trawlers: two trawlers dragging a very large net between them. At the front end of the net the meshes are sufficiently large for a dolphin to be able to swim through with ease. The mesh becomes smaller towards the cod-end, but it is only half-way along the length of the net that the mesh becomes sufficiently small to prevent a dolphin from escaping. Why dolphins are caught in the nets, and why they do not use the means of escape provided by mitigation measures tried under SMRU's observation, is not known.

    15. The bass fishery is seasonal, between November and May, with a concentration of effort in February and March. In the North-East Atlantic, the countries whose trawlers fish for bass are principally the UK and France. In the 2003/04 season, 7 pairs of UK boats were engaged in pair trawl fishing for bass. The French trawling is considerably greater than that of the UK, about 5 times its size in terms of numbers of vessels engaged in the fishery. However, Defra believes that there is little activity by French vessels in the zone within 12 miles of the English south-west coast, with possibly only 2 pairs entering the zone (see Defra's letter to the EU Commission dated 26 January 2005).

    Events leading to the making of the Order

    16. In March 2003, Defra, together with its equivalent authorities in Scotland, Wales and Northern Ireland, published a consultation paper outlining their proposed strategy to reduce small cetacean bycatch in UK fisheries. It made the point that "the most effective method of bycatch reduction is closure of the offending fishery with no displacement of fishing effort elsewhere". It is obvious that if the closure of a particular area results in the fishing vessels involved in fishing there simply fishing in another area, if cetaceans are as numerous in that other area as in the closed area, the effect on bycatch numbers is likely to be nil: i.e., the closure of the first area will be ineffective as a means of reducing cetacean bycatch. It is otherwise, of course, if there is no displacement of fishing effort, but instead a reduction in fishing. The consultation paper recommended that the UK adopt "a small cetacean bycatch response strategy", which would lead to "a suite of co-ordinated and proactive measures being taken in the UK to address the problem of small cetacean bycatch", and would be accompanied by appropriate research. It might be thought that this recommendation was long on words and short on specifics, but nothing turns on it.

    17. In March 2004, an EC regulation, (Council Regulation EC No. 812/2004) was adopted which addressed small cetacean bycatch. It did not include any specific measures to reduce bycatch, partly because apart from UK data there was little information available and partly because no effective mitigation measures had been identified. It required observers to be placed on a percentage of vessels from January 2005. It also required the Commission to review data collected by Member States with a view to their presenting a report to the Council by 2007/2008. It follows that there was thereafter little prospect of a Commission proposal to address bycatch in the bass pair trawl fishery until 2008.

    18. Some time before 30 July 2004, SMRU provided to Defra the results of its observations of bycatch in the 2003/2004 season. They are set out in the SMRU report referred to below. They showed a substantial increase in bycatch dolphin deaths. The bycatch figures were considered against the then estimates of the common dolphin population of between 75,000 and 120,000, and on that basis exceeded the 1.7 per cent limit.

    19. Defra reacted to this information by considering what action it could take to reduce bycatch numbers. It decided to seek Commission action under Article 7 of the CFP Framework Regulation. However, according to the witness statement dated 6 April 2005 of Lindsay Harris, the Head of Sea Fisheries Conservation Division, with responsibility for the impact of fisheries on the marine environment and issues relating to cetacean bycatch, it was appreciated that, given the recent adoption by the Council of the EC Bycatch Regulation, there was not a good prospect of further agreed measures, and the Minister was keen to explore alternative measures to be taken if the request for action under Article 7 was rejected. An option that was considered was described by Mr Harris as "ringfencing": placing restrictions on the UK fishery to limit involvement only to those who could demonstrate a track record in the fishery over a set period and who agreed to comply with further trials of mitigation devices. Effectively, this would be a system of licensing, However, it was decided to try Article 7 first.

    20. On 22 July 2004, a Ministerial announcement was made to the House of Commons. The Minister, Ben Bradshaw MP, informed of the House of the request for an emergency closure of the fishery under Article 7, and continued:

    "If this is not accepted, I will take action to ensure that this fishery does not continue in its present state next season, and will be looking to limit the number of vessels allowed into the fishery and to close the fishery within our national 12 mile limit. Alongside this, we will continue with research to identify other fisheries causing bycatch. Our latest research suggests that fisheries other than pair trawling for bass are contributing to the large number of strandings each year."

    21. By letter dated 30 July 2004, the UK sought EU Commission action under Article 7 of Council Regulation EC 2371/2002 to close the Western Channel pair trawl fishery for bass, on the ground that current levels of cetacean bycatch there constituted a threat to the common dolphin population. The application for Commission action was based on the work of SMRU, and in particular the report on the 2003-2004 season referred to above. The letter concluded:

    "Based on observations made during the 2003/4 fishery, dolphin bycatch for the UK element of the bass offshore pair trawl fishery is estimated at approximately 400 animals. On the assumption that bycatch rates are equivalent in the larger French element of the fishery, and on the basis of an abundance estimate of 75,000 ... or 120,000 (references supplied), it is estimated that bycatch of the common dolphins could be 2% or over. This is clearly in excess of the objective of reducing bycatch to below 1% of the best available population estimates accepted by North Sea Ministers in 2002 at the 5th North Sea Conference."

    22. The European Commission rejected the UK's request. In his letter dated 24 August 2004, the Director-General for Fisheries acknowledged "the considerable efforts made by the United Kingdom authorities and scientists to find a solution to the problem of cetacean bycatch in pelagic trawls". Commission agreed that bycatch of small cetaceans was a serious threat to the conservation of cetacean populations. However, the Commission believed that the legal requirements justifying emergency measures under Article 7 were not satisfied. Other measures could be introduced before the next sea bass fishing season. In relation to the measure proposed by the UK, the letter stated:

    "The Commission also considers that a prohibition on the use of pair trawl to target sea bass in ICES (International Council for the Exploration of the Sea) division VIIe could result in a redistribution of fishing effort either into other fisheries (whether defined by gear or target species) in the same area or into adjacent areas, without necessarily reducing the by-catch of common dolphins. This reason was also mentioned by ICES for not recommending spatial or temporal closure on a small-scale as an effective mitigation strategy at this stage."

    ICES division VIIe is the Western English Channel.

    23. In September 2004, SMRU presented its report to Defra on dolphin bycatch mitigation in the bass pair trawl fishery, incorporating the results of their observations of the 2003-2004 bass fishing season. The report pointed out that the numbers of stranded carcases of common dolphins and harbour porpoises reported on beaches in the southwest of England had increased three-fold since the early 1990s. A large proportion of the animals had been diagnosed as having died in fishing operations. The reasons for the increases in strandings were not clear, but the increases did not appear to be correlated with any trends in bass fishing effort. No acceptable effective exclusion or escape device had been identified. The report included the following summary of observations made by SMRU of dolphin bycatch in the bass fishery.

    Season Mortalities Hauls Bycatch rate

    2000-2001 52 91 0.57

    2001-2002 9 91 0.10

    2002-2003 26 113 0.23

    2003-2004 169 131 1.29

    Totals 256 426 0.60.

    24. On the basis that in 2001-2002 SMRU observed about 26 per cent of all hauls, they gave a figure for total seasonal bycatch of about 35 animals. The bycatch rate in the 2003-2004 season was 12 times greater than that in the 2001-2002 season and more than twice that of the 2000-2001 season. Whether the results of the 2003-2004 season were exceptional or symptomatic of a general increase could not be determined. In its analysis of the results of the 2003-2004 season, the report stated:

    "We also observed a shift inshore in the areas of peak bycatch. Whereas in previous years bycatch rates have been highest in 24-30 nautical miles from shore, this season bycatches were seen much more frequently in the 12-18 nautical miles zone. It would seem that the increased bycatch rates in November-February could be linked to the increase in bycatch further inshore, and suggests a change in the distribution of animals with more animals in the 12-18 nautical miles zone in December than in previous years. More animals further offshore in the early part of the season would also be consistent with the strikingly lower common dolphin strandings rates that were observed on English coasts in the 2003-2004 (season) compared with the previous season. Fewer animals close to shore may result in fewer being washed ashore, but increases their contact with the bass trawlers."

    25. A histogram in the report showed that in 2001-2003, a higher proportion of hauls resulted in bycatches when carried out between 6-12 miles from shore than in the 12-18 miles zone or in the 18-24 miles zone (it was approximately the same proportion as those in the 12-18 miles and the 18-24 miles zones combined); the proportion of hauls involving bycatches was greatest by far in the 24-30 miles zone (over 3 times the proportion in the 6-12 miles zone). The proportion of hauls involving bycatches decreased again beyond the 30 miles zone, to a level similar to that in the 6-12 miles zone. In 2003-2004, however, the proportion of hauls involving bycatches was greatest by far in the 12-18 miles zone; the next highest was in the 18-24 miles zone. Again, it was not possible to state whether the 2003-2004 observations would be repeated or were exceptional.

    26. On 27 September 2004, Ben Bradshaw, the Fisheries Minister, announced that measures were being drawn up to help reduce cetacean bycatch caused by pair trawling techniques in the fisheries in the South West of England. He stated that those measures would include a ban on bass pair trawling within the 12 mile zone and the introduction of a licensing system for UK vessels within the 12 to 200 miles zone. The note to editors in the news release issued by Defra stated that France and Belgium have theoretical rights to fish for demersal species in UK territorial waters from 6 to 12 miles, but that there was no evidence that either country prosecuted the winter bass fishery. (Presumably this was a reference to the fishery within the 12 mile zone.) It also stated that licensing would be limited to vessels that could prove a long-term involvement in fishery, and that licensed vessels would be required to employ mitigation devices and to carry scientific observers. Defra also pursued EU action to reduce cetacean bycatch, but without concrete result.

    27. Greenpeace received a copy of the Commission's decision letter of 24 August 2004. In a letter dated 8 October 2004 to Ben Bradshaw MP, then the Minister for Nature Conservation and Fisheries (and now Minister for Local Environment, Marine and Animal Welfare), they sought further action on the part of the UK Government. They contended that there were a number of misconceptions on the part of the Commission that had led them to refuse to take action. In relation to the suggestion that fishing effort would be displaced, they stated:

    "... there is no reason to suppose that the pair trawl activity in ICES division VIIe would be replaced by equally detrimental fishing effort in adjacent areas. The winter bass fishery is targeted precisely because that is where the heaviest concentration of bass is to be found. Fishing in other areas at the same levels of effort (and involving the same levels of bycatch) would not be presumed to occur, because the returns from the effort would be lower." (Emphasis in original.)

    Greenpeace asked:

    "Leaving aside the proposed measures to ban bass pair trawling out to 12 miles and to introduce a licensing system for UK vessels (which will not alone be sufficient to protect the common dolphin population in the winter bass fishery), what other steps of any description has your Department taken to ensure that the risk of irreparable harm to the common dolphin population is avoided?"

    The letter contained no objection to the proposed order.

    28. Following the Ministerial announcement, Defra consulted on the proposed ban. The consultation period was remarkably short: only 3 weeks, expiring on 17 November 2004. A letter dated 29 October 2004 was sent to consultees, enclosing a copy of the proposed statutory instrument, and stating that derogations from the ban were intended for vessels whose fishing had not been observed to involve cetacean bycatch by reason of the mesh size of their nets and in the case of vessels with a registered engine power less than 221 KW. The letter invited comments "on the terms of the prohibition outlined in the Statutory Instrument", but it also invited comments and further information on the attached partial (i.e., draft) Regulatory Impact Assessment. According to Mr Harris's witness statement, since the Minister had already announced the ban within the 12 mile zone, the consultation was on the technical terms of the prohibition and not on the policy of closing the fishery, and this is reflected in the Regulatory Impact Assessment for the Order, and was understood by some consultees (see the letter dated 16 November 2004 from Plymouth Trawler Agents Ltd complaining of the exclusion from the consultation of the question whether there should be a ban). However, Mr Thompson took no point on the limited terms of the consultation.

    29. The partial Regulatory Impact Assessment enclosed with the letter stated:

    "The government intends therefore to prohibit the use of pair trawl gear targeting bass within 12 miles north of the UK south west coast and to put a request to the European Commission, under Article 9 of Council Regulation 2371/2002, for this measure to be extended to all member States' vessels. A licensing scheme for the fishery outside 12 miles will also be drawn up. The closure would be targeted solely at pelagic pair trawling for bass. Other methods of fishing for bass such as gillnetting and hand lining would be unaffected by these measures."

    30. The partial regulatory impact assessment stated that 3 options had been considered: (i) to do nothing; (ii) to take action on a UK only basis; and (iii) to take action on a UK basis, then approach the Commission to make the prohibition applicable to all member states. It did not recommend option (i) because, on the basis of the then estimate of populations of common dolphins of around 120,000, overall bycatch levels could be in excess of the 1.7 per cent level, so that, in the absence of any effective technical solution, to allow the fishery to continue with open access was unlikely to allow the UK to meet its international obligations. Option (ii) was not recommended because France has access rights to fish within the 6-12 mile zone of the south coast of the UK for all demersal species, and there was anecdotal evidence suggesting that some French vessels make use of these rights. The assessment explained why option (iii) was recommended:

    "15. Option (iii) take action for a UK basis, then approach the Commission to make a prohibition applicable to all member states. The UK Government would take action to ban the UK fishery within 12 miles, and then under Article 9 of Council Regulation 2371/2002 submit the Order to the Commission for consultation with other Member States in order that the measures may affect all vessels involved in the fishery. A controlled licensing scheme for the offshore fishery will be developed simultaneously.
    16. The offshore fishery is prosecuted by a significantly larger number of vessels from another member state, France. This is why the UK has for many years, in the light of our research findings, pressed for meaningful action at an EU level to address the problems identified. We do not believe that the implementation of the recent Council Regulation (EC) No. 812/2004 laying down measures concerning incidental catches of cetaceans in the fisheries provides an effective response to the threat now faced as this only requires observer coverage in the pair trawl fishery and would not be in line with the application of the precautionary approach to fisheries management, as set out in the CFP framework regulation. Although there is limited French activity within the 6-12 mile zone, it would be preferable for the measures to apply equally to all vessels operating in this area. Option (iii) is therefore recommended. However, if the Commission do not accept the case for action applying to other vessels in the 12 mile zone, given the low level of activity in this area on the part of member states, we would continue with the introduction of measures to (sic) applying to UK vessels only."

    31. 18 responses to the consultation were received. A letter dated 18 November 2004 from LINK, a consortium of organisations concerned with animal conservation (Greenpeace, the Herpetological Conservation Trust, the International Fund for Animal Welfare, Marine Connection, the Marine Conservation Society, the RSPCA, the Whale and Dolphin Conservation Society and the Wildlife Trusts) welcomed the commitment expressed in the proposed initiative. They said:

    "We also welcome the commitment expressed in this initiative to try to address this problem. We feel that such a demonstration is important in its own right but also in terms of the message that it sends to both the European Commission and to our the EU neighbours that cetacean bycatch problems can no longer be overlooked, or subject to further research, but have to be acted upon as a matter of urgency."

    However, they did not believe that the proposed SI was an adequate response or would address the problem effectively. They stated:

    "We are not convinced that the result of this Statutory Instrument will be a reduction in overall fishing effort in the best pelagic pair trawl fishery except, perhaps, in the case of the one pair of smaller vessels that may not be prepared to fish further offshore. What we consider to be more likely is that fishing effort that would otherwise have occurred within 12nm will simply shift beyond this limit to waters where rates of bycatch per fishing effort (by proportion of hauls with bycatch) are considerably higher.
    Therefore, unless the closure of this fishery is extended to waters beyond 12nm we are not convinced that he proposed SI will result in a reduction in dolphin bycatch, but it may in fact result in an increase in mortality levels."

    32. The conclusions expressed in the letter included the following:

    "While we support the UK Government's stated commitment to mitigating the high level of dolphin bycatch in the sea bass for pelagic pair trawl fishery, we do not believe that the proposed measures will achieve this aim. Indeed we suspect that closure of the fishery only within 12 nautical miles may even result in increased dolphin mortality... In the case of the Western Channel bass fishery such a closure would have to extend beyond 12nm... We believe that the whole fishery (including the French) should be closed unless or until an effective means of preventing bycatch can be demonstrated."

    33. The RSPCA followed up this joint submission in a letter to Defra dated 10 December 2004 (i.e. after the consultation period) in order to "expand on a few key points". They stated:

    "We do not believe that this proposed 0 to 12 mile closure will reduce the number of dolphin deaths overall. Bycatch rates for common dolphins in this fishery are significantly higher beyond 12 miles. By excluding the bass trawl fishery from the 0 to 12 mile zone, efforts will no doubt be displaced into those offshore areas where dolphin deaths are far more frequent."

    Incidentally, the letter made the point that the UK had conducted more cetacean bycatch mitigation research than any other European country. However, it requested that the proposed ban should not interfere with research being carried out into modifications to fishing equipment that would prevent or minimise cetacean bycatch.

    34. The Cornwall Wildlife Trust welcomed the proposed ban, as did the South Wales Sea Fisheries Committee. The Marine Conservation Society, in a letter dated 16 November 2004 welcomed the proposal, but did not consider it to be sufficient. It stated:

    "The prohibition on pair trawling for bass only applies to UK vessels fishing within the 12 mile limit of Area VIIe. This restriction is likely to achieve very little in terms of protecting cetaceans as a substantial part of the fishery takes place in waters outside the 12 mile limit. Any proposal to ban pelagic pair trawling for bass should apply to UK vessels wherever they are fishing. We would also reiterate that in order for such a ban to be effective it should apply to all vessels irrespective of Nationality especially as the UK has been identified as representing about 10% of the fishery. However we do not support the UK government doing nothing on this basis."

    35. In their letter dated 17 November 2004, English Nature (which has advisory functions under the Environmental Protection Act 1990) agreed with the recommendation of Option (iii) in the Regulatory Impact Assessment. They stated that they were fully supportive of the proposed statutory instrument; they welcomed it "as a positive move towards reducing cetacean bycatch in the southwest territorial waters"; but they wished to see a ban on all vessels involved in the fishery, not just UK vessels, and not limited to the 12-mile zone. This reaction was shared by a number of other consultees, such as the Devon Sea Fisheries Committee ("some action is better than none").

    36. The Scottish Pelagic Fishermen's Association responded to the consultation by letter dated 17 November 2004. They referred to the vessels of one of their members, and said that the proposed ban would undermine the economic viability of his bass fishery. His vessels were less than 15 metres in length and "fishing exclusively outwith 12 miles from under-15 m boats in winter is a non-starter for safety reasons". They asked:

    "What is the scientific rationale for closing the fishery within 12 miles? None of the evidence presented to us points towards dolphin bycatch being more of a problem inside 12 miles than outside 12 miles."

    37. MacKinnons, the Scottish solicitors for the owners of two Scottish vessels (the "Ocean Crest" and "Ocean Star") engaged in bass pair trawling, who had participated extensively in the SMRU research, made a submission in a letter dated 17 November 2004. They disputed the data on which the decision to introduce the ban had been based, pointing out that the 2003-2004 bycatch level was exceptional, and stating, with reasons, that the basis of the calculation that the French fleet was responsible for 5 times the bycatch of the UK fleet was tenuous, that the abundance of the population of affected dolphins was then estimated by SMRU at 470,000 animals, some 3 times the figure on which Defra had based its calculations, so that there was no evidence that the 1.7 per cent limit had been or would be breached; and that the only UK vessels with engine power in excess of 221 kw were those owned by their clients. The letter added:

    "There is a real risk that prohibiting the Fishery within the 12 mile limit will simply result in fishing effort being displaced to areas outwith the 12 mile limit. For a winter fishery using vessels in these areas, with in the case of the Owners (vessels) an overall length of 15 metres, is not desirable from a safety point of view. Also from a conservation point of view, there is no evidence that displacing effort in this way will result in reduced bycatch levels."

    38. MacKinnon's representations received substantial support from SMRU. In an undated letter to Defra, Dr Simon Northridge of SMRU stated:

    "1) As a result of recent abundance estimates made from pre-existing survey data, coupled with recent information on population structure of common dolphins in the Atlantic, common dolphin population numbers are almost certainly several times the quoted figure of 120,000.
    2) French fishing effort in VIIe in 2003/4 is likely to have been substantially lower than the assumed level of five times UK effort.
    3) The high level of UK bycatch is largely the result of very high bycatch rates observed in December 2003 and January 2004. French and UK fishing effort is greatest in late February and March. To extrapolate to the French fleet one would therefore need to use bycatch rates for the later period of February to March, rather than the unusually high rates observed in December and January. Observed rates in the UK fishery in March 2004 were lower than in previous years.
    4) Population removals due to bycatch needed to be considered over the long term: a single year's estimates should not be viewed in isolation but need to be considered among estimates from other years. Furthermore, the rules that define unsustainable takes are set on the assumption of bycatch ongoing indefinitely, whereas there is a clear intention on the part of the fishery and Defra that the bycatch in this fishery should be reduced in the short to medium-term. 4) Population removals due to bycatch needed to be considered over the long term: a single year's estimates should not be viewed in isolation but need to be considered among estimates from other years. Furthermore, the rules that define unsustainable takes are set on the assumption of bycatch ongoing indefinitely, whereas there is a clear intention on the part of the fishery and Defra that the bycatch in this fishery should be reduced in the short to medium-term."

    Referring to the proposed statutory instrument, he stated:

    "The proposed 12 mile exclusion will mainly impact on a single pair of vessels, which is the pair with which we are most actively collaborating. These 15m vessels do not have access to quota for other species and will be forced to fish beyond 12 mile limit for bass. There are serious safety implications here for forcing a single pair of 15m to work further offshore in the Channel in winter...
    The purpose of the ban as stated in the accompanying documentation is to minimise dolphin mortality. In this respect I also believe that a ban will have the opposite effect. In all four years that we have been studying this fishery, dolphin bycatch rates have been considerably higher outside 12 miles than inside. The displacement of effort outside 12 miles will therefore increase mortality of common dolphins."

    The emphasis is in the original. However, SMRU welcomed the proposed licensing scheme as:

    "an important measure to limit fishing effort in this fishery. This will ensure that current bycatch levels are reduced, and will also address ICES concerns that fishing effort (and fishing mortality rates on bass) should not be allowed to exceed levels of effort in 2002."

    39. Defra prepared a summary of responses to the consultation on the proposed ban. In general, it is a fair summary. Representations were summarised under a number of headings. For present purposes it is sufficient to cite two extracts that appeared under the heading "12 mile limit":

    "The majority of respondents are concerned this measure will not be effective as the majority of pair trawling happens outside the 12 mile limit.
    Others raised concerns that prohibiting pair trawling within 12 miles will cause a displacement of effort outside 12 miles, which could lead to an increase in dolphin mortality."

    The summary was circulated to relevant officials and was used at the meeting with Mr Bradshaw on 18 November 2004, to which I refer below.

    The making of the Order

    40. The original evidence filed by Defra consisted of Mr Harris's witness statement. In paragraph 20 he sought to summarise the results of the consultation on the proposed prohibition. He described the responses to the consultation as "mixed" He did not refer to the views expressed that the prohibition would cause a displacement of effort outside the 12 mile zone and to an increase in dolphin mortality, presumably because this went not to the "technical terms of the prohibition The original evidence filed by Defra consisted of Mr Harris's witness statement. In paragraph 20 he sought to summarise the results of the consultation on the proposed prohibition. He described the responses to the consultation as "mixed" He did not refer to the views expressed that the prohibition would cause a displacement of effort outside the 12 mile zone and to an increase in dolphin mortality, presumably because this went not to the "technical terms of the prohibition" but to the question whether there should be a prohibition at all, which had, on his evidence, already been decided. He did mention that SMRU had stated that the prohibition would be ineffective in reducing bycatch, but not that they had stated that it would increase bycatch. Having summarised the responses to the consultation, he said:

    "The Minister therefore concluded that he would proceed with the 12 mile prohibition..."

    41. Defra substantially supplemented that evidence following the adjournment of 21 July 2005. What follows is based on that additional evidence.

    42. On 18 November 2004, Mr Bradshaw, as the responsible Minister, met with officials to decide how to proceed following the consultation exercise. The question of cetacean bycatch had been under consideration within the Department for some time, and those participating in the meeting were not new to the subject. The meeting is the subject of the witness statements of Anthony Hynes, a member of Defra's Sea Fisheries Conservation Division who has worked on cetacean bycatch since 2000 and Mr Bradshaw himself. No documents other than the summary of responses to the consultation were prepared for the meeting.

    43. Mr Hynes said, in his first witness statement dated 4 August 2005:

    "3. Both before and at the time of the decision to proceed with the 12 mile prohibition order, we were fully aware from the SMRU report of September 2004 that rates of bycatch outside 12 miles were higher than within 12 miles and that more fishing activity occurred outside 12 miles. In particular, we were aware that SMRU research showed that the bycatch rates in 2003/4 were highest in the 12 to 18 mile zone, but that in the years before that bycatch rates were progressively lower outside the 12 mile zone until reaching beyond 24 miles from shore. We also noted that SMRU considered that the bycatch result for 2003/04 were anomalous...
    6. I subsequently attended the meeting with the Minister, with other colleagues, where the draft Statutory Instrument, the application of the measure to other member states and measures outside 12 miles were discussed. The summary of responses was discussed with the Minister. I recall discussion in particular of the SMRU response where their opposition to the prohibition was raised. Also, as part of these discussions, I made the point that the science did not support the ban and that bycatch was most significant outside 12 miles. We did not discuss in explicit terms with the Minister the theory that displacement might lead to increased dolphin mortality. However, the issues arising from displacement were covered in implicitly with the Minister the context of the 12 mile area being of importance to some of the vessels in the UK fishery because of their relatively small size which prevented them working outside 12 miles during severe weather (mostly winter months when bycatch had been high in the 2003/04 season relative to previous seasons). In other words, displacement would not take place in practice for part of the season because of safety concerns which would stop vessels fishing completely if the 12 mile zone was not available to them. We also concluded that the ban would act as a deterrent to opportunistic fishers. The discussion then moved to progress on licensing outside 12 miles; although not recorded in the official note of the meeting, my clear recollection is that this was discussed directly after consideration of the impact of the ban on the vessels involved in the fishery because we were fully aware that restrictions had to be placed on the fishery outside 12 miles if we were to address the area where bycatch was most significant, i.e. to avoid any possible displacement effects from the ban.
    7. Displacement of vessels from within 12 miles to outside 12 miles was not a critical issue in determining the way forward with the 12 mile prohibition. We were aware that there was relatively limited fishing activity within the 12 mile area on the part of both UK and French vessels. Even if this limited effort were displaced (contrary to our expectation at the time, given the anticipated deterrent effect of the ban), its impact would be mitigated by reducing the number of vessels that had previously prosecuted the fishery i.e. from the seven pairs of the previous year to the 'normal' two pairs who had had a long term involvement in the fishery, by the licensing regime that was under consideration and it was intended to pursue at the time.
    8. In the event, it became apparent that only the two regular pairs of vessels would enter the fishery in the 2004/05 season and there was therefore no need in practice to introduce a licensing scheme to restrict the opportunistic fishers of the previous years..."

    44. According to Mr Bradshaw's witness statement, also dated 4 August 2005:

    "6... I considered that a UK prohibition was an important step to demonstrate UK Government leadership in the protection of cetaceans. It would have taken compelling evidence for me to have departed from my view that a ban was desirable as part of this approach (the so-called step-wise approach) to achieving a greater protection for cetaceans at an EU level, and as a positive protection measure with a significant deterrent effect, particularly for UK vessels.
    7... While there were two pairs of vessels that regularly prosecuted the fishery in the 2003/04 fishing season and other previous seasons, further Scottish pairs had prosecuted it on an opportunistic basis. It was my view that any restriction we could place on the fishery would make it more likely than not that the opportunistic fissures would decide not to come down to the South West.
    8. I was advised at the meeting on 18 November 2004 that most of the responses to the consultation had welcomed the positive action, but that some NGOs and parts of the fishing industry were concerned that there was little scientific justification and that it might not be effective.
    9. I was also advised and generally aware that the scientific evidence for a ban only inside the 12 mile limit was weak, but I was mindful of the broader rationale (reflected in the RIA) for the UK to take what action we could in this fishery... A ban inside 12 miles was one step in a strategy aimed at putting pressure on the EU Commission/Member States to take this issue more seriously.
    10. While I do not recall being made explicitly aware of the so called 'displacement theory' as it is now described by Greenpeace, I was aware that UK vessels fishing inside 12 miles might transfer their effort outside the 12 mile limit in the event of a ban. However, I was satisfied that safety considerations and the licensing system we proposed for in the UK vessels dishing outside 12 miles would act as deterrents to the displacement of effort. The licensing system would limit the number of boats in the fishery and required that those taking part participate in the cetacean bycatch monitoring and separator grid trials being conducted by the SMRU on the two regularly fishing pairs.
    11. I concluded that we should proceed with the prohibition..."

    45. The note of the meeting broadly confirms this evidence. It includes the following:

    "4. AH (Anthony Hynes) reminded the meeting that we had always known that the evidence for a ban inside the 12m limit was weak but we wanted to take what action we could. A ban inside 12m. was one step in the strategy, increased pressure on the Commission and showed other member states that UK was serious. SMRU had responded to the consultation saying that the proposed measures would not be effective in addressing cetacean bycatch. There was not a serious threat to populations and measures should apply to all vessels...
    7. BB queried the significance of the fishery for the two Scottish pair trawlers known to be fishing there. AH confirmed it was important for them and noted that bycatch was most significant between 12 and 18 miles however these were relatively small boats and fishing outside the 12 m limit raised safety concerns. He also noted that these fishermen had co-operated with researchers and were currently involved with an EU project which would suffer if they were unable to continue fishing. AH noted we had powers to grant a scientific derogation and SEERAD (Scottish Executive Environment and Rural Affairs Department) were in favour of taking this approach to the Scottish vessels currently in the fishery...
    8. BB asked about progress on licensing outside 12 m. AH said little had happened on this because of the focus inside 12 m. LH noted that this licensing would prevent new boats entering the fishery.
    9. BB concluded that we should continue as previously intended..."

    The note does not refer to the issue of displacement of effort otherwise than in paragraph 7 quoted above. The note refers to the possibility of proceedings for judicial review, apparently based on the contention that the measure would be ineffective and discriminatory and lacked a basis of compelling scientific data.

    46. In his letter to the Secretary of State dated 22 November 2004, Mr Bradshaw said:

    "... given the level of public concern and the observed bycatch in the pair trawl fishery, I do not think it defensible to allow fishing operations to continue unrestricted until such time in the future that either a gear solution is found or Community action can be agreed. To demonstrate that we are doing as much as we can in the meantime, I intend to introduce a closure of the pair trawl fishery within 12 miles of the SW coast under the CFP...
    ... It has to be accepted that a 12 mile closure alone will not be the most effective solution to the bycatch problem as most activity in the fishery takes place outside the 12 mile zone and so the scientific evidence to support the prohibition is not strong. However I see the prohibition as an interim step to more effective co-ordinated action at a Community level when more detailed results would be available from continuing research programmes. I also think that such a move would demonstrate quite strongly that the UK is prepared to take whatever action it can to tackle this problem with a view to gathering support as a Community level for more effective action. I also feel that a prohibition would send out a clear message that the CFP can help member states tackle the environmental impacts of fishing."

    47. Also on 22 November Mr Bradshaw wrote to the French Minister for Agriculture, Food, and Rural Affairs. Mr Bradshaw's letter was consistent with the note of the meeting of 18 November and his other correspondence. He said:

    "... given the level of public concern and the observed bycatch in the pair trawl, I would find it extremely difficult to defend fishing operations continuing unrestricted until a gear solution is found sometime in the future. This is why we have turned to considering more radical means of reducing bycatch in this fishery...
    To demonstrate that we are doing as much as we can until an acceptable community solution can be found, I have decided to use the powers available under article 9 of the Common Fisheries Policy framework regulation to take action within the 12 nautical mile zone of the UK coast. My intention is to introduce a ban as soon as possible on pelagic pair trawling for bass within our 12 mile limit to have effect in the current fishing season. For reasons of equity, we would also be applying to the Commission to have this ban extended to all pair trawlers fishing for bass in the 12 mile zone. On its own I accept that this is not the most effective solution to the bycatch problem given that most activity occurs outside the zone but I see this as an interim step to a more effective, co-ordinated action at a Community level when the results are available from the research programmes which you pointed to in your response to the UK application for an emergency closure."

    48. On 19 November 2004, Greenpeace's solicitors sent a letter before claim to Defra. It alleged that there had been a general failure on the part of the UK to meet its obligations under Article 12(4) of the Habitats Directive. In relation to the proposed Order, the letter referred to the SMRU report summarised above and stated:

    "... The SMRU report specifically referred to there being 'more animals further offshore in the early part of the season' which 'may result in fewer being washed ashore, but increases their contact with the bass trawlers'. The natural result of introducing a ban on fishing effort only within 12 nautical miles will be to transfer it to the zones where bycatch is heaviest."

    However, the gravamen of the letter was that the UK Government had failed to meet its obligations under Article 12(4) of the Habitats Directive.

    49. Dr Northridge of SMRU also wrote to Defra on 25 November 2004 seeking a dispensation from the proposed ban for scientific work, namely the trials and observations of mitigation measures that could only be carried out on vessels (presumably the Ocean Crest and Ocean Star) that could only safely fish within the 12 mile zone. SMRU's application for this dispensation was supported by the World Wildlife Fund.

    50. Defra responded substantively to Greenpeace's letter before claim by letter dated 6 December 2004. It did not address the displacement issue.

    51. After the consultation was launched, Defra accepted that previous estimates of dolphin abundance were erroneous; its scientific advisers confirmed that the best estimate of the common dolphin population is 390,000. While this meant that the 1.7 per cent limit on bycatch mortality was not being exceeded, it did not affect the desirability of minimising it.

    52. The Order was made on 22 December 2004 and came into force on 24 December 2004. It is expressed to have been made in exercise of the powers conferred by sections 3, 5(1), 5(A) and 15(3) of the 1967 Act. It differed from the original proposal in that the prohibition applies to vessels under 221 kw, because of concerns that smaller vessels were engaged in pair trawling for bass. The accompanying explanatory memorandum, containing information for the Joint Committee on Statutory Instruments, stated that the aim of the measure was to reduce the bycatch of common dolphins, and that the statutory instrument had been made to comply with commitments set out in the Bergen Declaration to minimise incidental catches and/or damage of non-target organisms, and in line with ASCOBANS' general aim ultimately to reduce to zero all anthropogenic removals. The Regulatory Impact Assessment included the following:

    "7. New evidence has indicated that common dolphin population numbers are almost certainly several times the previously accepted figure 120,000. Although this population figure is higher than that understood at the time of the UK's request to the Commission, the UK government must take measures to minimise as far as possible the bycatch of dolphins within UK territorial waters in line with the precautionary approach.
    8. The Government intends therefore to take a stepwise approach to the issue of cetacean bycatch in this fishery by prohibiting the use of pair trawl gear targeting bass within 12 miles of the UK southwest coast (ICES Area VIIe) followed by a request to the European Commission, under Article 9 of Council Regulation 2371/2002, for this measure to be applied to all Members States' vessels. A licensing scheme for the fishery outside 12 miles will also be drawn up. The prohibition would be targeted solely at pelagic pair trawling for bass..."

    53. The Assessment referred to the three options that had been described in the Partial Regulatory Assessment and set out reasons for rejecting options (i) and (ii). It continued:

    "The offshore fishery is prosecuted by significantly larger number of vessels from another member state, France. This is why the UK has for many years, in the light of our research findings, pressed for action that an EU level to address the problems identified. Although there is limited French activity within the 6-12 mile zone, it would be preferable for the measures to apply equally to all vessels operating in this area. Option (iii) is therefore recommended. However, if the Commission do not accept the case for action applied to other vessels in the 12 mile zone, given the low level of activity in this area on the part of member states, we would continue with the introduction of measures to apply to UK vessels only."

    54. The Assessment purported to summarise the results of the consultation "on the terms of the prohibition outlines (sic) in the draft Statutory Instrument". It did not refer to the objection to the ban that it would displace fishing effort to areas where there were more dolphins and a greater incidence of bycatch. It did state that: The Assessment purported to summarise the results of the consultation "on the terms of the prohibition outlines (sic) in the draft Statutory Instrument". It did not refer to the objection to the ban that it would displace fishing effort to areas where there were more dolphins and a greater incidence of bycatch. It did state that:

    "The main vessels involved in this fishery dispute that other fisheries are open to them, and maintain that this prohibition would place their viability in doubt. Being forced by the closure to work outside 12 miles during bad weather would also raise safety concerns for these vessels."

    55. The Order was amended by the South-west Territorial Waters (Prohibition of Pair Trawling) (Amendment) Order 2005, in a respect which is immaterial to the issues I have to decide.


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