Greenpeace Ltd v Secretary of State for the Environment, Food & Rural Affairs [2005] EWCA Civ 1656

Case No C1/2005/2282

[2005] EWCA Civ 1656

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

(MR JUSTICE STANLEY BURNTON)

Venue Royal Courts of Justice

Date Monday, 31st October 2005

Strand

London, WC2

B E F O R E:

LORD JUSTICE MUMMERY

LORD JUSTICE LAWS

LORD JUSTICE WALL

GREENPEACE LTD

Applicant/Claimant

-v-

SECRETARY OF STATE FOR THE ENVIRONMENT, FOOD AND RURAL AFFAIRS

Respondent/Defendant

(Computer-Aided Transcript of the Palantype Notes of

Smith Bernal Wordwave Limited

190 Fleet Street, London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR JON TURNER (instructed by Messrs Harrison Grant) appeared on behalf of the Applicant

MR RHODRI THOMPSON QC (instructed by Defra Legal Services) appeared on behalf of the Respondent

J U D G M E N T

Between

Greenpeace LtdAppellant

Secretary of State for the Environment, Food & Rural AffairsRespondent

LORD JUSTICE LAWS:

This

[1]is an appeal, with permission granted by the judge below, against a decision of Stanley Burnton J, given in the Administrative Court on 10th October 2005 by which he refused the application made by the appellants, Greenpeace, by way of judicial review for an order to quash the South-west Territorial Waters (Prohibition of Pair Trawling) Order 2004 ("the order"). The order prohibits the use of specified pair trawl nets by UK fishing boats within 12 nautical miles off the south-west coast of England.

[2]The case is about dolphins; or rather about the aspiration shared by the appellant, Greenpeace, and the Secretary of State to reduce the numbers of dolphins which are unintentionally killed by the process of fishing.

[3]In paragraph 3 of his judgment, Stanley Burnton J said this:

"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."

[4]What was called the second claim was the only live claim in the proceedings before Stanley Burnton J and gives rise to the issues on this appeal. The judge declined to award costs to the successful respondent, the Secretary of State, and his refusal to do so is challenged in a respondent's notice.

[5]The legal and factual background to the case, including the events leading to the making of the order and the making of the order itself, are fully and carefully described by the judge in paragraphs 5 to 55 of his judgment. I reproduce these paragraphs in their entirety in an appendix to this judgment.

[6]As the judge also records, paragraph 60, although he was to regard it as not relevant to his decision, that since the prohibition has been in place the number of pairs of vessels in the United Kingdom element of the fishery operating outside 12 miles has decreased from seven in 2003/2004 to two in 2004/2005. I should also notice the Secretary of State's evidence that preliminary results suggested that the bycatch rate in the latest season, that is 2004/2005, was about half of that in the previous season and that strandings of common dolphins had decreased from 93 in the first quarter of 2004 to 43 in the first quarter of 2005.

[7]As the judge recorded at paragraph 62, the case for judicial review of the order was put below by counsel for the appellants on two grounds:(1) irrationality and

(2) a failure to have regard to a material consideration, that is to say the opinion advanced in the consultation process to the effect that the order would actually have a negative effect because displacement of fishing effort to beyond the 12-mile limit would result in a greater number of bycatch deaths. The judge categorised this latter ground of challenge as procedural, although in conventional judicial review terms a failure to take account of a material consideration is, in truth, a species of Wednesbury irrationality; and there is nothing here in difference between substance and procedure. However, I do not for my part criticise the judge. I think it would be pedantic to do so. His approach was helpful given the circumstances of the case.

[8]The irrationality challenge, so called, was unpacked by the learned

judge as follows (paragraph 67):

"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."

[9]This first aspect has been developed by the appellants in their grounds and skeleton argument in this court into a full-blown challenge to the vires of the order. Mr Thompson QC for the Secretary of State has thought it right to characterise this development as impermissible and opportunistic. For his part, the judge below accepted that "there was no substantial scientific basis for the [order]" and he proceeded to explain that conclusion. The Secretary of State's respondent's notice contends (leaving aside the issue of costs) that relief should in any event be refused as a matter of discretion because the appellant's concerns about displacement of bycatch deaths have not in fact eventuated. But there is no challenge to Stanley Burnton J's finding of fact that there was no substantial scientific basis for the order.

[10]Before arriving at his conclusions, the judge made another finding to which I attach some importance. Paragraph 66:

"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."

[11]However, the judge below rejected the first aspect to the challenge which had been articulated in terms of irrationality. He said:

"70. 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."

[12]The judge held that, whether he considered only the Minister's reasoning process or considered also what he called (paragraph 71) "the anticipated effect of the legislation in the factual matrix in which it operates", the order was rationally made. He said (paragraph 72):

"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."

Then he said this in the next paragraph:

"73. 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."

The judge also rejected the second aspect of the challenge, which, as I have said, he had described as procedural. The reasoning is to be found in paragraph 72 as follows:

"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."

[13]The two grounds of assault against the order are pursued on this appeal. The first, as I have said, is expressly stated as a vires challenge, with irrationality put as an alternative. This is how that part of the case is articulated in the appellant's skeleton argument (paragraph 4(1)):

"The enabling statute pursuant to which the order was made, on its natural interpretation and in the light of EC law, permits measures to be taken to restrict fishing activities providing that these are effective conservation measures based on sound science; however, the purpose of the contested order was not that it should be an effective conservation measure to reduce dolphin mortality from fishing activities, and nor did the Minister have any evidential basis for thinking that it would have this effect; in those circumstances, the decision to make the order was outwith the legislative power conferred by the enabling statute, and/or it was an unreasonable exercise of the legislative power;"

[14]The second part of the case, the procedural challenge, is pursued very much as it had been before Stanley Burnton J. I should say at this stage that there has been a great deal of huffing and puffing in this case by each side about the conduct of the other. A large proportion of the appellant's counsel's skeleton argument is taken up with complaints about the Department's response or failure to respond to correspondence. The appellants are at pains to emphasise the lateness of important evidence served by the respondent department after an adjournment on 20th July to allow the service of additional evidence. They refer to the witness statements of Mr Bradshaw, the Minister, dated 4th August 2005, and Mr Hynes of the Department's Sea Fisheries Conservation Division, dated 15th August 2005. The respondents, for their part, say that the appellant's main ground of challenge was an alleged failure by the Secretary of State to fulfil certain of the United Kingdom's obligations arising under the EC Habitats Directive and this was always doomed to failure and was abandoned shortly before the case came before Stanley Burnton J. They say that the so called procedural point was not pleaded in the grounds and only emerged on the first day of the hearing. The case was never put or pleaded below as a vires challenge and, in their grounds supporting their own application for leave to appeal by respondent's notice to the judge's refusal to award them any costs, they accused the appellants of bombarding the department with "a stream of aggressive correspondence".

[15]While there is something in both sides' complaints, the whole farrago is, to my mind, unseemly and unhappy. If anything, Mr Thompson's skeleton argument for the Secretary of State is more aggresive than his opponent's. But I mention these points only to get them out of the way for the time being. Some of them may have some relevance on the cross appeal as to costs. I propose to deal directly with the vires challenge as it is now formulated, though even there, I should say in passing, as Mr Thompson submitted (paragraph 12 of his skeleton argument) the appellants are in breach of the relevant provisions of the Civil Procedure Rules requiring notice and permission in relation to new points sought to be taken. I need not dwell on this since he has abandoned the point and rightly so; there is no conceivable prejudice at this stage and the responsible approach now is surely to have the substantial issues in the case properly settled by the court's adjudication.

[16]I turn then to the vires issue. The stated vires for the order is the Sea Fish Conservation Act 1967 as amended, to which the judge made some reference at paragraph 8 of his judgment, which is of course in the appendix. I should set out Section 5(1), which gives the context for Section 5A, the latter being the critical provision:

"5(1) Subject to the provisions of this section, the Ministers may by order prohibit in any area specified in the order and either for a period so specified or without limitation of time -- (a) all fishing for sea fish; or (b) fishing for any description of sea fish specified in the order; or (c) fishing for sea fish, or for any description of sea fish specified in the order, by any method so specified, "by any fishing boat to which the prohibition applies; and where any fishing boat is used in contravention of any prohibition imposed by an order under this section, the master, the owner and the charterer (any if) shall each be guilty of an offence under this subsection."

Then Section 5A provides:

"(1) Any power to make an order under section 5 above may be exercised for marine environmental purposes. "(2) The power to make an order under section 5 above by virtue of this section is in addition to, and not in derogation from, the power to make an order under that section otherwise than by virtue of this section. "(3) In this section 'marine environmental purposes' means the purposes-- (a) of conserving or enhancing the natural beauty or amenity of marine or coastal areas (including their geological or physiographical features) or of any features of archaeological or historic interest in such areas; or (b) of conserving flora or fauna which are dependent on, or associated with, a marine or coastal environment."

[17]In light of the way the vires case is now put, I should also cite the Common Fisheries Policy Regulation 2371/2000. Article 9 is headed "Member State measures within the 12 nautical mile zone". Article 9.1 provides:

"A Member State may take non-discriminatory measures for the conservation and management of fisheries resources and to minimise the effect of fishing on the conservation of marine eco-systems within 12 nautical miles of its baselines provided that the Community has not adopted measures addressing conservation and management specifically for this area. The Member State measures shall be compatible with the objectives set out in Article 2 and no less stringent than existing Community legislation."

The cross reference to Article 2 is important for the appellant's argument. Article 2 is headed "Objectives" and provides as follows:

"1. The Common Fisheries policy shall ensure exploitation of living aquatic resources that provides sustainable economic, environmental and social conditions. "

For this purpose, the Community shall apply the precautionary approach in taking measures designed to protect and conserve living aquatic resources, to provide for their sustainable exploitation and to minimise the impact of fishing activities on marine eco-systems. It shall aim at a progressive implementation of an eco-system-based approach to fisheries management. It shall aim to contribute to efficient fishing activities within an economically viable and competitive fisheries and aquaculture industry, providing a fair standard of living for those who depend on fishing activities and taking into account the interests of consumers. "2. The Common Fisheries Policy shall be guided by the following principles of good governance: (a) clear definition of responsibilities at the Community, national and local levels; (b) a decision-making process based on sound scientific advice which delivers timely results; (c) broad involvement of stakeholders at all stages of the policy from conception to implementation; (d) consistence with other Community policies, in particular with environmental, social, regional, development, health and consumer protection policies."

[18]Mr Turner's principal vires argument on behalf of the appellants, certainly the argument having the sharpest focus, goes like this:(1) by force of Article 9 of the regulation, Section 5A must be read with Article 2 and is qualified by it.

(2) Accordingly, it is a condition of the legality of an order made under Section 5A that it be based on "sound scientific advice", see Article 2.2(b).

(3) But the judge found, and there is no challenge to it, that "there was no substantial scientific basis for prohibition": judgment paragraph 68.

(4) Accordingly, a condition for the order's legality was not met and the order is ultra vires.

[19]In my judgment this is a bad argument. No doubt the order was made within Article 9. Article 2.2(b) of the regulation, however, is expressed to be no more nor less than a principle of good governance for the guidance of the CFP. This provision it too general to constitute a distinct qualification of the terms of Section 5A. More important, it does not purport to do so. Nor does Article 9 turn it into such a qualification. If, which I do not at all suggest, the order were in some way an affront to the CFP regulation, the appropriate challenge would not be to the domestic vires of the order by reference to Section 5A but to its asserted incompatibility with the CFP regulation. That is not the nature of the challenge that has been brought. I doubt, for what it is worth, whether there would be any basis for it. Mr Turner has, in any event disavowed it.

[20]It seems to me therefore, in summary, that it is simply not possible to read the relevant terms of the regulation as qualifying the sense to be attributed to Section 5A. It follows that the vires of the order is to be judged as a matter of domestic law by reference to Sections 5 and 5A as being unqualified by the regulation. On that footing it seems to me that Stanley Burnton J dealt with its interpretation correctly, see paragraph 70 of the judgment which I have read.

[21]Mr Turner has some subsidiary points in support of the vires argument though I am not sure that he would accept the adjective "subsidiary". First, as I understand it, something is sought to be built out of the proposition that the order was meant to be a step in a political strategy: the strategy being, if I may put it this way, to exert moral pressure on the EU. But this goes nowhere. The judge found, as I have shown (paragraph 66), that "the Minister was genuine in seeking to reduce cetacean mortality." That was the aim or purpose of the measure. If the Government aspired, in addition to or as part of that purpose, to influence the EU commission or to set an example, that cannot in my judgment begin to infect the vires of the order.

[22]It is next said (paragraph 38 of the appellant's skeleton) that there is something objectionable in the fact (see the judgment, paragraph 72) that the details of the so called "stepwise strategy" were "far from worked out". There is nothing in this either. As the judge said at paragraph 72, the Minister was entitled to make an order which had "some, albeit probably limited, effect". The fact that the government's aspiration to influence the EU Commission was not then and there backed up with a worked up scientific case cannot touch the vires issue. In any event, I think Mr Turner underestimates the extent to which the Minister's approach was in concrete terms. Paragraph 8 of the final regulatory impact assessment is in point. It is already set out by the judge at paragraph 52 of the judgment but I repeat it for convenience. "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..."

[23]Now it is true, as Mr Turner submitted this morning, that the Commission can only act on the basis of sound scientific evidence or, at the least, they must be guided by sound scientific evidence. On the appellant's case there was no such evidence at the time these matters were being considered. But that cannot in my judgment invalidate the Minister's approach as a matter of law. He was seeking to put some pressure on the Commission. What its outcome or out-turn would be no doubt lay unknown in the future.

[24]I conclude that the vires challenge fails.

[25]I turn to the next part of the case which travels into the procedural challenge. It is said that the minister did not take account of the concerns which had been expressed in the consultation exercise to the effect that the order would displace fishing effort into areas of higher bycatch beyond the 12-mile zone, thus risking an increased dolphin mortality rate. This is plainly no part of what may be called a black letter vires argument. To the extent that the appellants advance an argument of that kind, I have dealt with it and in my judgment it fails. The point now taken is a pure Wednesbury submission: an alleged failure to have regard to a material consideration. It has a flip side: the appellant says that, had this been taken into account, the Minister should have concluded that the order would or might have been counter-productive. That is the relation, I think, in which the so-called rationality argument here and the so called procedural argument stand towards each other.

[26]A Wednesbury argument in a context such as that of an order under Section 5A in my judgment faces formidable difficulties. First, the decision-maker is generally the master of the matters he will treat as relevant and the depth or detail into which he will go: see the decision of the New Zealand Court of Appeal in CREEDNZ v Governor General

[1981] 1 NZLR 172

, applied in English law by the House of Lords in Re Findlay

[1985] AC 318

. See also Khatun v London Borough of Newham

[2005] QB 37

55F in this court and NHS v Department of Health

[2005] EWCA Civ 154

, also in this court.

[27]Secondly, although there is undoubtedly power in the court to quash such an order, and in the case of a proved want of vires the court will do so unless some exceptional feature dictates otherwise, it has to be borne in mind that the order was subject to a Parliamentary approval procedure (albeit the negative resolution procedure: see Section 20(5) of the 1967 Act) and the subject matter of the order was a delicate and strategic political issue. In those circumstances the court will be very slow to strike down the measure on perversity grounds. The appellants themselves (Mr Turner's skeleton paragraph 62) rightly refer to their Lordships' House's decision in Nottingham County Council v Secretary of State for the Environment

[1986] AC 240

. Perhaps I may be forgiven for not setting out the text: material passages are at 247E-G and 267A-B. In fact the measure we are concerned with in this case attracted a considerable degree of support from expert consultees, precisely on the broad grounds on which the order was made. The evidence before the judge shows as much.

[28]In all these circumstances I entertain the greatest doubt as to whether it is right that the court should undertake a detailed exercise of assessment of the relative weight, wisdom or quality of points made or information provided during the course of the decision-making process. In my judgment Mr Turner would have to show something very sharp and striking properly to engage the judicial review jurisdiction.

[29]I propose accordingly to deal with this aspect of the case relatively shortly. First, I repeat for convenience the essence of the judge's finding on this part of the case:

"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."

[30]In my judgment, it is not shown that any of this reasoning was wrong. Mr Thompson submits (skeleton argument 36a):

"The papers considered by Mr Bradshaw, at the meeting on 18 November 2004 where the decision to proceed with the Order was taken, included a summary of responses where the 'displacement theory' was 'clearly put'..."

The relevant document is quoted at paragraph 39 of the judgment, which of course appears in the appendix and I will not set it out again.

[31]Now, for his part Mr Turner has made much today of the consultation exercise. He has referred to what was said by SMRU, English Nature, the Scottish fishermen's solicitors, the LINK organisation and the RSPCA. He referred to the exiguous terms of the minute of the meeting on 19th November 2004. He attacked the judge's conclusions concerning safety in licensing which appear in paragraph 72. It is convenient to repeat this following passage from Mr Hynes' first statement, which is to be found at pages 34 and 35 of the judgment:

"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."

Mr Bradshaw, at paragraph 10 of his statement of 4th August, said this: "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 of the licensing system we proposed for any UK vessels fishing outside 12 miles would act as deterrents to the displacement of effort".

[32]Mr Turner had some very narrow points in relation to this evidence. He suggested that because of the circumstances in which it was put before the court and the lateness of its arrival there, and the gap of time between the decision and the reconstruction of these statements, we should in effect not accept what was there being said. I see no basis on which that would be a proper judicial response to evidence put forward before the High Court in judicial review proceedings as was done here. He had some points on the text. He said there were points here being made that do not appear in the minute of the meeting and that a very close reading of what is said by Mr Bradshaw, and I think also Mr Hynes, does not reveal an unequivocal statement that there would be no displacement.

[33]I have no hesitation in holding that this evidence well justifies the judge's conclusions at paragraph 72. We are not ourselves reconsidering these matters as the primary decision maker. At no time is that any proper part of the court's task. That is, of course, elementary; but I have to say that for all the world much of the very careful submissions we have listened to this morning have, as it seems to me, an underlying premise close to the proposition that we are judges of merit.

[34]In the circumstances the judge's conclusion was in my judgment well justified. There is nothing in this part of the case, whether categorised as a procedural or an irrationality challenge.

[35]In the course of argument there has been some dispute as to the proper effect, if any, of the evidence about events after the making of the order. I have already referred to paragraph 60 of the judgment, recording the reduction in the number of pairs of vessels operating outside 12 miles and the decreased rate of bycatch, as demonstrated (at least) by what the judge referred to as preliminary results. I should say that it appears from a recent SMRU report, to which Mr Turner referred, that any conclusions to be drawn from these preliminary or rough figures need to be treated with considerable circumspection. I do not propose to take time with this aspect of the case other than to say that if I had been satisfied that the order was strictly ultra vires by reference to the empowering words of the statute (read with or without the Common Fisheries Policy Regulation) this material coming into existence ex post facto would not have deterred me from quashing the order, since there is, very obviously, a high public interest in seeing that the government does not make subordinate legislation which cannot be justified under the enabling primary legislation. If, on the other hand, the appellant had succeeded only on the Wednesbury argument -- and, of course, if my Lords agree with what I have said he has not -- whether that is expressed as a procedural or irrationality challenge, I might have taken a different view as to the relevance of this later information. But it is not necessary to express any concluded opinion on such a question.

[36]There is one other matter by way, really, of postscript to the main appeal. Mr Turner had some brief submissions to make as to the judge's treatment of matters (see paragraph 73) which were not in the decision-maker's mind but which were facts which might have gone to the merits of the case. I find it necessary to say no more than that the learned judge's decision is, in my view, well justified without regard to what was there said.

[37]For all these reasons, for my part, I would dismiss the appeal.

[38]I turn to the application for permission to bring a cross appeal. This, of course, relates only to the learned judge's refusal to make any order for costs in the Secretary of State's favour in relation to the proceedings below. Stanley Burnton J gave reasons for taking that course as follows:

"I confess I found the question of costs in this case by no means easy. I say 'I found' because it is a matter to which, of course, I gave some consideration before I came into court today. The matters which were influencing me were (a) the fact that it seemed to me that there was a reasonable and responsible investigation into the making of the order and that, notwithstanding the fact the Greenpeace's case shifted, there were matters of real importance to be examined. The other matter which concerned me was that the evidence of the Department had been, at the earlier stage, until the adjournment after two days of hearing, not such as to give the court confidence that the issues raised by Greenpeace had been properly addressed. I should on any basis, I think, have made a special order in respect of the costs of and occasioned by that adjournment. "

The other matter which does concern me is that it is important that there should be free access to this court when genuine questions arise as to the lawfulness of government actions. It is true that there are a number of public interests involved in the present context, but there is, it was common ground on both sides, an important common interest in the preservation of all species of cetaceans. "It is unusual for there to be no order for costs in a case such as the present. Nonetheless, having regard to the matters that Mr Turner has referred to and the matter that I have just referred to, it seems to me that justice will be done if I make no order for costs in this case. That is a course which was one of the possibilities I had in mind, and, having heard submissions on both sides, I think it is appropriate in this case."

[39]Now it is elementary that the disposition of costs after a first instance hearing is pre-eminently for the discretion of the judge. Here Mr Thompson attacks the judge's reasons, first as confusing issues of standing with issues of costs and (this may be the principal aspect) he submits that the judge has not taken into account, or given any weight, to the fact that the appellants abandoned (shortly before the hearing as I understand it) the first and what may be called the principal part of their case, based on a complaint about the Secretary of State's approach to the Habitat Directive. That, in fact, was the subject of short exchanges with the judge before the judge gave the reasons which I have set out.

[40]I do not find it necessary to say any more than that I am unable to hold it to be arguable that the judge has in truth erred in principle here. Another judge might or might not have made the same order but, as my Lord Lord Justice Mummery, pointed out in the course of argument, no-one is better placed to have an accurate feel of the case, particularly in the context of a costs question, than the judge who has actually tried it. In these circumstances, I do not think that Stanley Burnton J's discretion can properly be undermined in this court and I would refuse permission to mount a cross appeal.

LORD JUSTICE WALL: I am in complete agreement with my Lord's judgment, both in relation to the substantive appeal and in relation to the issue of costs. I do not wish to add anything further of my own. Like him, I would dismiss the appeal and refuse the respondent permission to appeal on the question of costs.

LORD JUSTICE MUMMERY: I agree.

Order

Appeal dismissed. Permission to cross appeal refused. The appellant is to pay the respondent's costs of the appeal. No order for costs in relation to the cross appeal.