Greenpeace Ltd, R (on the application of) v Secretary of State for the Environment, Food and Rural Affairs

The power to restrict fishing for marine-environment purposes does not require the Minister to be satisfied that the restriction is necessary to preserve a species or will substantially reduce mortality. It is sufficient that the measure can sensibly be considered capable of achieving the statutory purpose and is exercised reasonably and fairly.

Review of delegated legislation for perversity must be undertaken with caution. The court may consider the decision-maker’s reasoning and the anticipated effect of the measure. A procedural challenge fails where the decision-maker has considered the material issue, even if the evidence of that consideration is limited.

Greenpeace challenged the South-west Territorial Waters (Prohibition of Pair Trawling) Order 2004, which prohibited specified pair-trawl fishing for bass within 12 nautical miles of the south-west coast of England.

The challenge alleged that the Order was irrational because its scientific basis was weak and that displacement of fishing effort might increase dolphin mortality. It was also alleged that the Minister had failed to consider that displacement issue. The court therefore had to determine whether the Order was within the statutory power and whether the decision-making process was unlawful.

1. The claim was dismissed. The Order was made under sections 3, 5(1), 5A and 15(3) of the Sea Fish Conservation Act 1967.
2. Section 5A empowered the Minister to impose restrictions for marine-environment purposes, including conserving fauna dependent on, or associated with, a marine or coastal environment. Parliament had imposed no express requirement that the Minister possess evidence showing that the measure was necessary for preservation of a species or would substantially reduce mortality. The relevant question was whether the measure could sensibly be considered as achieving that purpose and was exercised reasonably and fairly.
3. There was no substantial scientific basis for the prohibition viewed in isolation. Nevertheless, the Minister was entitled to make a measure having some, albeit probably limited, effect. The Order could reduce bycatch if fishing effort was not displaced. The proposed stepwise strategy, including pressure for coordinated European action and possible licensing beyond 12 miles, was a permissible consideration.
4. Review of delegated legislation for perversity had to be exercised with caution, since primary scrutiny of such legislation was Parliamentary. The Commission’s different view did not establish that the Minister’s decision was perverse.
5. The Minister had considered the material displacement issue. He considered whether affected vessels would be deterred from moving offshore by safety concerns and whether licensing could prevent displacement. The procedural challenge therefore failed. It was unnecessary to decide whether the challenge would also have failed because the same decision would have been made had the issue been considered differently.
6. Subsequent reductions in fishing effort and bycatch did not need to be considered. On the evidence, their causal connection with the Order remained speculative.