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Neutral Citation Number: [2005] EWHC 2144 (Admin)
Case No: CO/865/2005

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
10th October 2005

B e f o r e :

MR JUSTICE STANLEY BURNTON
____________________

Between:
The Queen on the application of GREENPEACE LIMITED
Claimant
- and -

THE SECRETARY OF STATE FOR THE ENVIRONMENT, FOOD AND RURAL AFFAIRS


Defendant

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Jon Turner (instructed by Harrison Grant) for the Claimant
Rhodri Thompson QC and Angus McCullough (instructed by the Legal Department of Defra) for the Defendant

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mr Justice Stanley Burnton :

    Introduction

  1. In its claim form in these proceedings, Greenpeace sought judicial review:
  2. (a) of the failure it alleged on the part of the Secretary of State to fulfil this country's obligations under the EC Habitats Directive to ensure that incidental capture and killing of the common dolphin Delphinus delphis does not have a significant impact on the species; and

    (b) her decision to make the South-west Territorial Waters (Prohibition of Pair Trawling) Order 2004, SI 2004 No. 3397 ("the Order"), which prohibits the use of specified pair trawl nets by UK fishing boats within 12 nautical miles of the south-west coast of England.

  3. By letter dated 12 July 2005, Greenpeace informed Defra that, in view of developments after it had filed its claim, it would not proceed with the first of its claims. It pursued its second claim, challenging the lawfulness of the Order. The hearing was adjourned after the second day to enable the Secretary of State to serve additional evidence as to the decision to make the Order. This is my judgment on that second claim.
  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. The issues raised by Greenpeace are summarised in paragraph 62 and 63 below. In order to understand the issues, it is necessary to set out the factual and legal background to the Order in some detail. This will also, I hope, assist any other Court that considers these issues.
  6. The Background: (a) Legal

  7. 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.
  8. 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.
  9. 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.
  10. 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".
  11. The Background: (b) Factual

  12. 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.
  13. 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.
  14. 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.
  15. 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.
  16. 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.
  17. 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.
  18. 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).
  19. Events leading to the making of the Order

  20. 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.
  21. 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.
  22. 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.
  23. 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.
  24. 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:
  25. "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."
  26. 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:
  27. "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."
  28. 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:
  29. "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.

  30. 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.
  31. 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

  32. 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:
  33. "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."
  34. 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.
  35. 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.
  36. 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:
  37. ", 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.

  38. 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.
  39. The partial Regulatory Impact Assessment enclosed with the letter stated:
  40. "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."
  41. 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:
  42. "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."
  43. 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:
  44. "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."
  45. The conclusions expressed in the letter included the following:
  46. "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."
  47. 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:
  48. "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.

  49. 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:
  50. "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."
  51. 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").
  52. 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:
  53. "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."
  54. 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:
  55. "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."
  56. MacKinnon's representations received substantial support from SMRU. In an undated letter to Defra, Dr Simon Northridge of SMRU stated:
  57. "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."

    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."
  58. 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":
  59. "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

  60. 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:
  61. "The Minister therefore concluded that he would proceed with the 12 mile prohibition "
  62. Defra substantially supplemented that evidence following the adjournment of 21 July 2005. What follows is based on that additional evidence.
  63. 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.
  64. Mr Hynes said, in his first witness statement dated 4 August 2005:
  65. "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. "
  66. According to Mr Bradshaw's witness statement, also dated 4 August 2005:
  67. "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. "
  68. The note of the meeting broadly confirms this evidence. It includes the following:
  69. "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.

  70. In his letter to the Secretary of State dated 22 November 2004, Mr Bradshaw said:
  71. " 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."
  72. 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:
  73. " 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."
  74. 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:
  75. " 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.

  76. 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.
  77. Defra responded substantively to Greenpeace's letter before claim by letter dated 6 December 2004. It did not address the displacement issue.
  78. 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.
  79. 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:
  80. "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. "
  81. 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:
  82. "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."
  83. 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:
  84. "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."
  85. 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.
  86. Subsequent events

  87. In February 2005, Defra granted the dispensation sought by SMRU to permit one of the pair of vessels to fish within the 12 mile zone so as to enable it to continue with its research into mitigation measures. According to Mr Harris, little or no use has been made of this dispensation.
  88. These proceedings were served on Defra on 10 February 2005.
  89. On 21 February 2005, the Commission rejected the UK's request to extend the closure of the pair trawl bass fishery under Article 9 of Regulation (EC) No. 2371/2002 to vessels of all Member States. Among the reasons given by the Commission for their decision were the following:
  90. " The issue of cetacean bycatch in pelagic pair trawling is a complex one and was specifically addressed as part of the comprehensive scientific review and advice given by the International Council for the Exploration of the Sea (ICES) on cetacean bycatch in fisheries. ICES indicated that 'other fisheries than pair trawling for bass also catch dolphins' and that 'there is a need for a comprehensive monitoring of the numerous trawl fisheries active in this region before we can be precise about mitigation requirements'. ICES considered in particular that a 'ban on pelagic pair trawling for bass' would be an 'arbitrary measure, unlikely to achieve the desired goal '. A prohibition on the use of pair trawls to target sea bass in the UK inshore waters in the Western Channel is likely to result in the redistribution of fishing effort into adjacent areas, without necessarily reducing the bycatch of common dolphins.
    This reasoning was one of the reasons for the Commission decision to reject the UK request for emergency action to ban pelagic trawling for bass in the Western Channel in August 2004. Since then, no new scientific information has been made available that could justify a change in this analysis."

    The italicisation of quotations is in the original.

  91. In about June 2005, ICES published an important paper on the interaction between common dolphins and fisheries in the North East Atlantic. It commented on spatio-temporal measures to limit fisheries:
  92. "Measures to limit fisheries or modify fishing behaviour when dolphins are present (both spatially and temporally) may seem a logical and simple way to reduced bycatch in some fisheries. However, for such measures to work there needs to be a good understanding of the bycatch phenomena and other factors inducing its variation. Without having such understanding care should be taken in changing fishing effort from one area to another because the results may prove to be the opposite of what it was intended.
    dangers may exist inside a single fishery. Northridge et al. (in prep.) reported that a ban of an inshore area could induce higher levels of fishing effort offshore, in an area where common dolphins are more abundant. This approach to reducing the impact of fishing was discussed in depth by (the Scientific, Technical and Economic Committee for fisheries). ICES agrees with the conclusions of that report and agrees that at present there are no obvious areas in the European Union where fishery closures should be proposed."
  93. Since the prohibition has been in place, the number of pairs of vessels in the UK element of the fishery operating outside 12 miles has decreased from 7 in 2003/2004 to 2 in 2004-2005. According to Mr Harris, this reduction was "possibly as a result of the closure acting as a deterrent to vessels entering the fishery", but why the closure should act as such a deterrent is not explained. He said that preliminary results suggest that the bycatch rate in the last season was about half of the previous season's, and that strandings of common dolphins have decreased from 93 in the first quarter of 2004 to 43 for the first quarter of 2005. He said:
  94. "Although it would be difficult to draw firm conclusions at such an early stage or to conclude that all of these results are as a direct consequence of the introduction of the 12 mile closure, the events since the closure do not appear to date to support the contention that it would result in an increased rate of bycatch."
  95. In his witness statement, Mr Bradshaw stated:
  96. "I am also aware that the recent by-catch figures show a dramatic reduction from last year. While we are unsure of the precise impact of the ban in contributing to or in achieving this reduction, it would seem perverse to reverse an apparently positive environmental measure (the prohibition) until we have had more time to assess its impact, because we failed to give greater attention to a theory that has not turned out to be correct. Certainly there is, at least to date, no basis on which it could be concluded that events have borne out Greenpeace's current argument. On the contrary, it appears that the ban has had the desired deterrent effect on opportunistic fishers and that this has significantly enhanced its effectiveness in reducing bycatch -- thus making it a limited but positive domestic measure while we strive to achieve a broader, European-wide, solution for the long term."

    The parties' contentions

  97. In his final submissions, Mr Turner contended that the Order fell to be quashed on two grounds: irrationality, and a failure to consider a material matter, namely the opinion advanced in the consultation process by, among others, SMRU, whom the Department had commissioned to carry out research into cetacean bycatch, that the Order would not just be ineffective, but actually have a negative effect in that displacement of fishing effort would result in a greater number of bycatch mortalities. The first of these grounds may be regarded as substantive, and the second as procedural. So far as the first ground is concerned, Greenpeace contended that the Order falls to be justified by itself, and cannot be justified by reference to other measures that it was hoped or envisaged would be introduced as part of the so-called step-wise approach.
  98. Defra disputes that there are any such grounds for judicial review. In addition, it relies on the reduction in UK fishing effort since the introduction of the prohibition as demonstrating the rationality of the measure. Greenpeace, for their part, dispute that Defra can rely on subsequent events to defend the lawfulness of its decision-making process, and add that the suggestion that the reduction in bycatch mortality during the last season was the result of the Order is speculation. They suggest that the reduction is more likely to have resulted from Greenpeace's "direct action" against pair trawlers operating outside the 12 mile zone.
  99. Discussion

  100. Greenpeace's grounds of challenge have understandably shifted in the course of the case in the light of the evidence. Their grounds did not clearly raise the procedural challenge to the Order: see paragraphs 64 and 65. The relevant question raised in paragraph 65 was:
  101. "Is the prohibition order flawed in that it is based on no solid evidential foundation and even likely to exacerbate, rather than mitigate, the bycatch problem and the threat to the conservation status of the short-beaked common dolphin?"

    See too paragraphs 86 to 88, which set out Greenpeace's contentions on this question. The Defendant's grounds and evidence responded to this basis for judicial review: see paragraph 27(ii). The Defendant's skeleton (but not her evidence) was somewhat equivocal: compare the first and the last sentences of paragraphs 24. During the first day of the hearing, I understood Mr Turner to restrict the claim to the alleged failure of the Minister to take account of the displacement issue raised by some of the responses to the consultation (and I made a note to that effect), and Mr Thompson made it clear that that was his understanding. Mr Thompson stated that if the procedural ground of challenge had been made clear earlier, Defra would have filed additional evidence. It was to give it an opportunity to file such evidence that I adjourned the hearing to a third day. I mention these developments because they assist an understanding the way the evidence appeared.

  102. Greenpeace suggested that the motive for the Order was improperly political: to give the (false) impression that the Government was taking effective action to save dolphins. Thus one of the consultation responses stated that the writer "understood that the move is more political than effective."
  103. 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. It is not inconsistent with this finding that Mr Bradshaw called in aid the pressure of public opinion in this country for effective steps to be taken to reduce cetacean bycatch when seeking to enlist the support of his French counterpart for EU action. That is the kind of support that a minister would sensibly pray in aid when approaching the minister of another Member State when seeking his co-operation.
  104. 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.
  105. It is, I think, clear that there was no substantial scientific basis for the prohibition. None has been demonstrated. Mr Hynes's reference at the meeting of 18 November 2004, and Mr Bradshaw's own acceptance in his witness statement that the scientific evidence for the prohibition was weak, are, I think, euphemistic: there was a lack of any substantial evidence. The lack of any firm scientific basis for the prohibition is confirmed by statements made by Mr Bradshaw before and after the Order was made. In an interview on BBC Radio Cornwall on 1 September 2004, he said:
  106. " I do urge some of these (non-governmental) organisations to recognise that it's in fact been the British Government that has taken the lead on this, and that if they care about dolphins and porpoises what we really need to do is to persuade particularly France but the rest of the EU that this is something to be taken seriously. We can act unilaterally in the UK, of course we can, and ban bass pair trawl fishing within our 12 mile limit very little of it actually goes on within our 12 mile limit, and there are very few UK boats involved. So it would be more of a gesture really than anything that would actually help the dolphin and porpoise population. "

    The italics are mine. He gave an interview on BBC Radio Devon on the same day, in the course of which he said:

    " there are steps that we can take unilaterally. They won't make a great deal of difference to the dolphins because, as you're aware, the vast bulk of this fishery is conducted outside our 12 mile limit by French vessels, so it might make us feel a little bit better about ourselves but it won't actually do much to help the dolphins.
    We can restrict the numbers of our own boats, we can insist that they have scientists, scientists monitoring the trawl and we can ban the pair trawling within our own waters. That's all we can do unilaterally. It's a small step, it'll help a little bit, but it won't do what I think Lindy (Linda Hingley, of Brixham Sea Watch) and probably most of your listeners want which is a total ban to the pair trawl fishery. That's something we haven't achieved and we need, as I say, cross EU-wide action to achieve."
  107. It was, I think, recognition of the lack of scientific support for the prohibition, viewed in isolation, that led Mr Thompson to submit that its validity does not rest on its intrinsic individual merits but on the merits of the "stepwise" approach favoured by the Minister.
  108. 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.
  109. It is not entirely clear to me whether, when assessing the rationality of a legislative measure such as the Order, which prohibits certain conduct for the future, the Court considers the reasoning process of the decision maker (which may not be obvious and may not be in evidence), or the anticipated effect of the legislation in the factual matrix in which it operates, or both, depending on the evidence available. But, whatever the material considered by the Court, the power to strike down a statutory instrument on the ground that the Minister's decision to make it was perverse is one to be exercised with caution. The primary review of delegated legislation ought to be Parliamentary.
  110. 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. 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.
  111. 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. It would be sensible to assess the reasonableness of the Order against the information available over a number of seasons. But it is significant that in 2001-2003 the bycatch rate was higher in the 12 mile zone than in the 12-18 mile or the 18-24 mile zone, so that if those figures were typical, there would be an increase in bycatch rate as a result of the Order only if vessels moved their fishing beyond 24 miles.
  112. It also follows that I would reject the procedural challenge to the Order, on the basis that the Minister did consider the relevant issue. It is therefore unnecessary for me to determine whether the procedural challenge to the Order would have failed in any event on the ground that, if the Minister had considered the issue, he would have made the same decision.
  113. Similarly, it is unnecessary for me to consider the Defendant's reliance on events subsequent to the making of the Order, namely the reduction in the number of UK fishing boats engaged in the fishery in the 2004/05 season as against the previous season. I doubt whether that reduction would have saved the Order if it were otherwise liable to be quashed. There is no evidence that the reduction was caused by the Order, and Mr Harris very fairly summarised the position in his witness statement: whether the reduction was caused by the Order is, at present and on the present evidence, a matter of speculation.
  114. Conclusion

  115. In the result, I would dismiss the claim to quash the Order for the reasons set out above.
  116. I should like to express my appreciation of the cogency and fairness of the arguments on both sides in this case.


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