Glass Eels Limited t/a UK Glass Eels, R (on the application of) v Secretary of State for the Environment, Food and Rural Affairs

A public authority may express a discretionary policy in unqualified terms. It need not state expressly that exceptions may arise, provided the decision-maker remains willing to consider individual applications and has not adopted a closed mind.

The duty to consider a relevant factor does not generally require the decision-maker to reach an independent conclusion on every aspect of that factor. A rational decision-maker may give decisive weight to systemic risks, including inadequate traceability, despite evidence concerning an individual importer.

A precautionary approach may be taken where an identified risk is supported by evidence. It does not require the decision-maker to establish the precise reasons for a regulatory failure before acting to mitigate the risk.

The claimant operated a glass eel fishery and sought judicial review of the defendant’s refusal to grant a CITES export permit for live European glass eels destined for an importer in Hong Kong.

The refusal relied on Council Regulation EC No 338/97, particularly Article 5(2)(d), and concerns that exports to Hong Kong or China could enable legally exported eels to mask or provide cover for illegally acquired eels because of inadequate traceability systems.

The claimant alleged that the defendant had fettered its discretion by applying an inflexible policy, failed to consider the importer’s identity and trustworthiness, and acted irrationally by relying on conjecture and an impermissible precautionary principle.

1. Ground 1 failed. The defendant was entitled to express its policy publicly in absolute terms. The binding decision in R (West Berkshire District Council and another) v Secretary of State for Communities and Local Government established that a policy-maker need not spell out the possibility of exceptions. The defendant nevertheless had to keep its mind open when deciding individual applications.
2. The evidence showed genuine consideration of the applications. The defendant’s concern was not confined to misuse of the physical export permit. It concerned the wider risk that legally exported glass eels could be mixed with illegally obtained eels at the aquaculture stage and thereby mask illegal trade. The decisions invited further relevant information and identified circumstances in which permits might potentially be granted. The policy therefore did not amount to unlawful fettering.
3. Ground 2 failed. The identity, character and trustworthiness of the proposed importer were relevant considerations. The defendant fulfilled its duty by taking account of the claimant’s representations about the importer and explaining why they could not offset the systemic absence of robust traceability. It was not required to reach its own concluded view on the importer’s personal probity.
4. Ground 3 failed. The reasoning did not contain the logical gap alleged by the claimant. The risk identified in both decisions concerned the wider regulatory and aquaculture system, rather than an assumption that an honest importer would become dishonest.
5. The defendant had adopted a precautionary approach to an identified and evidenced threat to a critically endangered species. The authorities on the precautionary principle did not prevent that approach. The defendant was not required to establish the precise reasons for China’s regulatory shortcomings or obtain first-hand evidence of its import and export practices. It had to remain open to permits where the risks could adequately be addressed or where systemic improvements occurred.
6. The claim for judicial review was dismissed.

First-instance judicial review. Permission was initially refused on the papers and at a hearing before HHJ Jarman KC. Permission was later granted by Males LJ on 16 June 2022. The Administrative Court dismissed the claim.