The States of Guernsey & Anor v Secretary of State for Environment, Food and Rural Affairs & Anor

A non-legally binding agreement between public authorities may give rise to justiciable public law obligations where it concerns domestic statutory functions and reviewable rights. The political character of an agreement does not place it within a forbidden area merely because it concerns relations between the United Kingdom and a Crown Dependency.

A licensing arrangement may constitute a possession under Article 1 of Protocol 1 where it has substantial economic value and is marketable. Interference may nevertheless be justified as a control on use if it pursues a legitimate aim, is rationally connected to that aim, is no more intrusive than necessary, and strikes a fair balance between private rights and the public interest.

The claimants challenged Defra’s suspension of a Fisheries Management Agreement with Guernsey and the consequential suspension by the Marine Management Organisation of reciprocal UK fishing licences held by Bailiwick vessels. The suspension followed a dispute about whether EU quota rules applied to fishing in the 3–12 nautical mile zone around Guernsey.

The claimants alleged irrationality. Mr Fallaize additionally alleged that the decisions interfered with possessions protected by Article 1 of Protocol 1 to the Convention. Defra contended that the agreement was political and non-justiciable. The central issues were whether the decisions were reviewable, whether they were irrational, and whether the interference with the asserted possessions was justified.

1. Justiciability. The Fisheries Management Agreement was not analogous to a treaty with a foreign sovereign state. The court had sufficient transparency and institutional competence to understand the statutory, European and fisheries framework and to assess the decisions. The agreement could therefore be relevant to judicial review.
2. The agreement did not create private-law rights because it was expressly non-binding. Nevertheless, the parties had governmental functions in relation to fisheries, and the agreement gave rise to obligations capable of being characterised as public-law obligations. Mr Fallaize’s asserted Convention right was also anterior to the suspension and provided a domestic foothold. His Article 1 of Protocol 1 claim was therefore justiciable.
3. Irrationality. Defra reasonably considered that the agreement was intended, in a non-contractual sense, to require EU quota rules in the 3–12 nautical mile zone. Guernsey had repeatedly rejected that position. Defra was entitled to conclude that the agreement had fundamentally broken down over a core principle and that suspension was a rational means of bringing Guernsey back to negotiations. The challenge was dismissed.
4. Article 1 of Protocol 1. The Bailiwick licence, including the relevant benefit of the reciprocal licence, was a possession because it required investment, was marketable and had substantial economic value. The broad statutory and contractual powers to suspend did not remove the licence-holder’s reasonable and legitimate expectation that the licence would continue. The interference was properly characterised as control of use rather than deprivation.
5. The proportionality assessment required consideration of a legitimate aim, rational connection, whether a less intrusive measure would equally achieve that aim, and fair balance. Defra had considered alternative measures. Suspending reciprocal licences had limited practical impact, while suspending the transfer mechanism was central to the broader response and gave Guernsey an incentive to negotiate. The measures fairly balanced private interests against quota management, sustainable development and the interests of fishermen across the four administrations.
6. The Article 1 of Protocol 1 claim therefore succeeded on the technical issues but failed on justification. The claim for judicial review was dismissed. The claimants were ordered to pay the defendants’ costs and permission to appeal was refused.

First instance judicial review. The claim was dismissed by the High Court (Administrative Court) on 22 July 2016. Permission to appeal was refused.