Greenpeace Ltd v Secretary of State for the Environment, Food & Rural Affairs

For a statutory power to restrict fishing for marine environmental purposes, the enabling Act need not require substantial scientific evidence or a reasonable belief that the measure will achieve a specified conservation outcome. It is enough that the measure could sensibly be considered capable of advancing the statutory purpose and that the power was exercised reasonably and fairly. A general good-governance principle requiring sound scientific advice in the Common Fisheries Policy did not add a domestic vires condition. On a Wednesbury challenge, the decision-maker controls the relevance and depth of inquiry. The court is especially slow to intervene in a politically sensitive measure subject to parliamentary approval and must not reweigh the merits. A challenge fails where relevant displacement risks were considered, even if the evidence was weak.

Greenpeace sought judicial review of the South-west Territorial Waters (Prohibition of Pair Trawling) Order 2004, made under the Sea Fish Conservation Act 1967 to prohibit specified pair trawling by UK fishing boats within 12 nautical miles of the south-west coast.

Stanley Burnton J rejected the live challenges, which alleged that the Order was beyond statutory power or irrational and that the Minister had failed to consider displacement of fishing effort and increased dolphin mortality. He found no substantial scientific basis for the Order but held that the statutory power had been validly exercised. He made no order for costs.

Greenpeace appealed. The Secretary of State sought permission to cross-appeal on costs. The central issues were whether the Common Fisheries Policy framework qualified the domestic statutory power and whether the Minister's consideration of displacement satisfied the requirements of judicial review.

Lord Justice Laws gave the leading judgment. Lord Justice Wall agreed in full, and Lord Justice Mummery agreed. The appeal was dismissed and permission to cross-appeal on costs was refused.

1. Under sections 5 and 5A of the Sea Fish Conservation Act 1967, the Minister could impose fishing restrictions for marine environmental purposes, including conserving fauna associated with a marine or coastal environment. The statute imposed no express requirement for particular evidence or for reasonable satisfaction that the measure was necessary or would achieve a specified reduction in mortality. The Order was within power if it could sensibly be considered capable of achieving the statutory purpose and the power was exercised reasonably and fairly.
2. The Minister's genuine purpose was to reduce cetacean mortality. Any additional objective of influencing the European Commission or demonstrating governmental leadership did not invalidate the Order. Nor was a fully developed scientific case or completely worked-out stepwise strategy required for an interim measure with some expected effect.
3. Article 2.2(b) of Council Regulation (EC) No. 2371/2002 stated a general good-governance principle for the Common Fisheries Policy. It was too general to impose a separate domestic condition of vires under section 5A. Article 9 did not transform it into such a condition. Any incompatibility with the Regulation would have been a distinct European-law challenge, which was not pursued.
4. A failure to take account of a material consideration was treated as a species of Wednesbury irrationality. The decision-maker generally determined which matters were relevant and the depth of inquiry. Given the Order's parliamentary approval procedure and its delicate strategic political context, the court would be slow to quash it for perversity. The challenger had to show something sharp and striking, and the court was not entitled to reassess the merits or act as the primary decision-maker. These principles were supported by CREEDNZ v Governor General [1981] 1 NZLR 172, Re Findlay [1985] AC 318, Khatun v London Borough of Newham [2005] QB 37, NHS v Department of Health [2005] EWCA Civ 154 and Nottingham County Council v Secretary of State for the Environment [1986] AC 240.
5. The evidence showed that the Minister had considered displacement through safety constraints on smaller vessels, proposed licensing outside 12 miles and the deterrent effect on opportunistic fishers. The court accepted the judge's assessment and declined to reweigh the evidence. Neither the material-consideration challenge nor the irrationality challenge succeeded.
6. By way of obiter observation, later evidence could not have saved an Order that was strictly ultra vires. The court left open whether later evidence might be relevant to a Wednesbury-only challenge.
7. First-instance costs were pre-eminently a matter for the trial judge's discretion. No error of principle had been shown, so the costs decision was not open to challenge. The appellant was ordered to pay the respondent's costs of the appeal, with no order for costs on the cross-appeal.

• Court of Appeal (Civil Division): The appeal against the Administrative Court's decision was dismissed. Permission to cross-appeal on costs was refused. The appellant was ordered to pay the respondent's costs of the appeal.
• Administrative Court: Stanley Burnton J refused Greenpeace's application for judicial review of the South-west Territorial Waters (Prohibition of Pair Trawling) Order 2004. He made no order for costs.