The States of Guernsey & Anor v Secretary of State for Environment, Food and Rural Affairs & Anor [2016] EWHC 1847 (Admin)

Case No CO/5354/2015

[2016] EWHC 1847 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 22/07/2016

Before

MR JUSTICE JAY

Between

THE STATES OF GUERNSEYClaimants

STEPHEN FALLAIZEClaimant

SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRSDefendants

MARINE MANAGEMENT ORGANISATIONDefendant

Marie Demetriou QC and Tom Pascoe (instructed by The Law Officers of the Crown, Guernsey) for Claimants

James Eadie QC and David Pievsky (instructed by Government Legal Department) for First Defendant

Sasha Blackmore (instructed by Browne Jacobson LLP) for Second Defendant

Hearing Hearing dates: 11 th and 12 th July 2016

Judgment

INTRODUCTION

[1]This is a claim for judicial review seeking to challenge two interconnected decisions. The first is the decision of the First Defendant (“Defra”) dated 23rd July 2015 indefinitely suspending the Fisheries Management Agreement (“FMA”) between Defra and the First Claimant, The States of Guernsey (which I will shorten hereafter to “Guernsey”). The second, which is very much parasitic on the first, is the decision of the Second Defendant (“MMO”) made on or about 29th July 2015 indefinitely suspending, with effect from 1st August, various reciprocal UK fishing vessel licences issued by it to a number of fishing vessels registered in the Bailiwick.

[2]This claim involves complex questions of law, including questions of justiciability, in the context of a dispute relating to the indirect application (if any) of the Common Fisheries Policy (“CFP”), and attendant quotas, to vessels fishing in the seas surrounding the Bailiwick; and the rights of licence holders (if any) under Article 1 Protocol 1 (“A1P1”) of the ECHR.

THE PARTIES

[3]Defra is the UK Government Department responsible for both domestic fisheries policy and the application, operation and administration both here and at EU level of inter alia the CFP.

[4]The island of Guernsey is not part of the UK (see, for a detailed exposition of the nature of the constitutional arrangements between Guernsey and the UK, paragraph 6ff of the judgment of Baroness Hale DPSC in R (oao Barclay and another) v SSJ and another

[2015] AC 276

). Guernsey, together with Jersey and the Isle of Man, is a Crown Dependency. In theory, UK Government and Parliament have full sovereign powers in relation to Guernsey, but in practice the relationship is more collegiate and facilitative, guided by a number of constitutional Conventions designed to accord Crown Dependencies as much autonomy as possible, in the context of their own democratically elected legislatures and municipal organs of State. As paragraph 13.4 of Defra’s Detailed Grounds of Defence explains, “the UK does not legislate or intervene in the domestic affairs of the Crown Dependencies without their consent, other than in very limited circumstances”. It is convenient to leave such circumstances undefined.

[5]Guernsey has its own Commerce and Employment Department (“the Department”) which is responsible for fisheries policy.

[6]The MMO is an executive non-departmental public body established and given powers under the Marine and Coastal Access Act 2009 with delegated responsibility from Defra for the implementation of fisheries management measures as they relate to the fishing fleets of UK and Guernsey. In this context, the UK means the four UK Fisheries Administrations including Defra, Marine Scotland, the Welsh Government and the Department of Agriculture, Environment and Rural Affairs (Northern Ireland). Key elements of policy are determined by Defra and then implemented, managed and administered by the MMO.

[7]The Second Claimant (“Mr Fallaize”) has been a full-time fisherman in Guernsey for 28 years. His current vessel, launched in 2006, is 8.4 metres long. Mr Fallaize works alone. He fishes wet fish, crab and lobster, both within and without Bailiwick waters. In 2006, Mr Fallaize applied for and was granted a licence from the Department which covers the 0-12 nm zone. According to his evidence, in 2009 he applied for and was granted a reciprocal licence from the MMO which enables him to fish within UK and EU waters (i.e. beyond the 12 nm zone) and to land his catches in the EU, including in particular France (either he must be wrong about the year, or the entity which granted his application, because in 2009 the MMO did not exist and licensing powers were exercised directly by Defra). When he fishes within Bailiwick waters, Mr Fallaize is not subject to any EU quotas; but he fully accepts that when he fishes beyond the 12 nm zone, he is.

ESSENTIAL FACTUAL BACKGROUND

[8]This is not substantially in dispute, although (and unsurprisingly) Counsel for the respective parties sought to place emphasis on different aspects of the overall picture. Insofar as there any differences between the various witnesses who have assisted the court, these seem to me to relate to matters of interpretation rather than of primary fact. The main reason for the existence of these divergences of viewpoint is the uncertainty which is necessarily attendant on the interrelation between imprecise, loose-limbed constitutional Conventions and a tightly-drawn legal and regulatory framework.

[9]In my view I need set out a succinct narrative which focuses on essential matters.

The Guernsey Fishing Fleet

[10]In 2013 the Guernsey fleet was composed of 159 vessels less than 10 metres in length, and 7 vessels greater than 10 metres. The industry employs over 180 people, and it is apparent from the basic arithmetic that most vessels are single-crewed. Christopher Morris charmingly describes the Bailiwick’s fishing industry as being “artisan in nature”: I can see his point, but it takes the argument no further.

[11]More relevantly, Mr Morris informs me that approximately 60% of the fleet target lobster and crab for both local and wholesale markets in Guernsey, Sark, Alderney and France. I mention this specifically because these crustaceans are not covered by any EU quota. Mr Morris also states that approximately £5M (net sales) of wet fish, crab and lobster was caught by Bailiwick vessels in 2014 with approximately £1M being sold within the Islands. The remaining £4M was sold and landed into the Port of Cherbourg for wholesale and auction sale. He is aware that “around 23 Bailiwick vessels currently land catches into France”. I was told during the hearing that the 27 nm trip to Cherbourg takes approximately 4 hours.

The Territorial Waters of the Bailiwick

[12]The Bailiwick of Guernsey has a territorial sea of 3 nm from the low water mark for each of the islands. This area is not covered by the FMA. In practice, Guernsey has “exclusive jurisdiction” over it, but in strict law this is not the position. Under section 1 of the Fishery Limits Act 1976, as extended to Guernsey by the Fishery Limits Act 1976 (Guernsey) Order 1989, the whole of the 0-12 nm area adjacent to Guernsey is within British Fishery Limits (or, as the Guernsey witnesses prefer to describe it, Bailiwick Fishery Limits).

[13]The focus of this case is the 3-12 nm zone. The strict legal position has to be viewed in parallel, or simultaneously, with accepted constitutional Convention pursuant to which, at all material times Defra has ceded de facto or operational control to Guernsey. How this plays out in relation to the licensing regime will be discussed under the following sub-heading, but at this stage I need examine the ramifications for the CFP and EU quotas.

[14]According to paragraph 10 of the first witness statement of Christopher Morris:

“I am aware that Guernsey has never accepted that the quota management measures applied by the UK in accordance with its obligations under the CFP apply to Guernsey, and it is my belief that the UK is aware of and has never contested this long standing position.”

Ms Marie Demetriou QC for Guernsey submitted that Defra has accepted in these proceedings that EU quota management measures do not formally apply to Guernsey. I do not read paragraph 10 of the witness statement of Nigel Gooding (Defra policy official in the EU, Marine and International Directorate) as amounting to a categorical acceptance that these measures do not apply, but I have not overlooked paragraph 2 of Defra’s Summary Grounds of Defence. The way in which Mr James Eadie QC put the point on behalf of Defra was that neither party has wanted the issue to be put to the test nor was inviting the court to give a ruling. I fully understand the delicate political sub-text underlying this submission, but for present purposes I must assume, without deciding, that EU quotas do not apply. This self-denying ordinance is not seeking to obfuscate a possible breach by the UK of its EU obligations because, as must explicitly be stated, relevant fish caught within the 3-12 nm zone are counted against the UK’s Total Allowable Catch (“TAC”).

[15]Mr Eadie referred to a congeries of interrelated considerations which he submitted led inexorably to the conclusion that, as matter of policy and common justice, Guernsey must accept that fishing within the 3-12 nm zone should be subject to quota. My interpretation of this submission is that Guernsey should accept the logic, reason and good sense of Defra policy on this point. These considerations are:(i) Zone VIIe (comprising, in part, the territorial waters of the Bailiwick) is comprehended by the EU Fishing regime;

(ii) Crown Dependency vessels are British vessels and included in the EU vessel register;

(iii) all fish caught in the 3-12 nm zone are reckoned against quota (assuming always that the species in question has a quota); and,

(iv) Guernsey’s fishing fleet receives all the benefits consequent on the licensing regime which it has agreed, and it should therefore accept the burdens. Viewed more broadly, the quota regime is designed to protect finite fish stocks and achieve a fair balance between the competing interests of Members States in EU waters; and for these purposes Guernsey is treated as part of the UK.

[16]I should say at once that point (iv) is capable of being controversial, and will need a modicum of examination below.

[17]In the context of point (iii), I should refer to paragraph 19 of Mr Gooding’s witness statement, which provides:

“It is the case that the Crown Dependencies, recognising that British fishing vessels registered in the Crown Dependencies fish against the quota the UK gets from the EU, have traditionally regulated how their own fishing vessels comply with quota restrictions. They then provide information to the MMO on quota uptake so that the MMO can assess quota uptake by all British vessels. This was the case with Guernsey until the facts leading to this dispute and continues to be the case for Jersey and the Isle of Man.”

Guernsey both admits and avers that “its” fish are reckoned against EU quota for all British vessels, and it has never resiled from that position. To that extent only, Guernsey has “complied with quota restrictions”, but this is not synonymous with the proposition that these restrictions directly apply. It would have been better had Mr Gooding inserted “if at all” between “how” and “their” in the fourth line above. The Department’s view, simply stated, is that within the 3-12 nm zone it may fish to the extent it chooses, untrammelled by quota; that the quantities involved are all faithfully recorded; and, for good measure, that “the UK’s TAC is generally based upon the historical track records of UK vessels’ fishing activities, including that of Bailiwick vessels fishing in UK waters and the 0-12 nm zone” (see paragraph 9 of the second witness statement of Mr Morris: emphasis in the original). The point being made is that the TAC levels are enhanced to reflect Guernsey fishing activity. However, I accept the submission of Ms Sasha Blackmore on behalf of the MMO that this is an over-simplified, and ultimately inaccurate, characterisation of how TAC levels are set. The limited relevance of historical data is explained in paragraph 49 of the witness statement of Kevin Williamson, the MMO’s Chief Statistician. The Fourth Recital to Council Regulation (EU) 2015/104 makes clear that TAC levels are set “on the basis of available scientific advice”.

[18]Mr Eadie’s “benefits and burdens” was a cornerstone of his merits case, and to my mind it is not fully addressed by paragraph 9 of Mr Morris’ second witness statement. The difficulty arises because for many years both Defra and Guernsey were content to proceed on the basis that EU quotas are not directly applicable, but in practice Guernsey are having their cake and eating it. Guernsey’s stout riposte is that it is entitled so to eat, because the constitutional Conventions apply and Defra has chosen not to force the issue. Defra’s counter-riposte is that it would be hardly surprising if, as a matter of policy, the parties should have acceded to a licensing framework which predicates the fairness and good sense of Defra’s position. At this stage I would characterise the situation which has resulted in consequence of the parties’ concordat regarding the direct application of EU quotas to Guernsey as being either hybrid or anomalous, or both, depending on which perspective one chooses to adopt.

[19]I should mention two matters of detail in relation to EU quotas which featured in Ms Demetriou’s submissions, if only to dispose of them at this early stage. First, she submitted that regard must be paid to the robust “technical measures” taken by Guernsey to safeguard the sustainability of harvesting fish within the 3-12 nm zone. However, I accept Mr Eadie’s submission that these measures cannot be viewed as a proper surrogate for quotas. Secondly, she submitted that, as Mr Gooding has explained at paragraph 41ff of his witness statement, the majority of the UK’s quota allocation for the larger vessels (i.e. over 10 metres) is managed by Fish Producers Organisations. Those vessels which are not members of such organisations are treated as “non-sector”, with a much lower allocation within the UK’s TAC. At paragraphs 72-74 of his first witness statement, Mr Morris explains that active consideration was given to the possibility of one particular vessel, the “Amy Blue”, joining a Fish Producers Organisation, but this could not be progressed because that vessel(i) was attributed with a catch history for Skate and Ray, and

(ii) these species are not a “Fixed Quota Allocation”, and cannot therefore be traded or “swapped”. Ms Demetriou’s submission, as I understood it, was that it ought to have been possible to effect a realignment of quota (as Mr Morris puts it) so as to bring the “Amy Blue” within sector limits, and their ampler allocations. However, the answer to that submission, as Ms Blackmore carefully explained to me in oral argument, is that realignment of quota may be possible where it is underused, but is wholly inapposite where (as here) there was nearly 100% uptake. The evidential foundation for that submission includes paragraph 100 of the witness statement of Mr Gooding: he points out that the amount of annual quota for Skate and Ray which could be allocated was only 0.4 tonnes, being less than 1% of this vessel’s annual catch.

The Licensing Regime

[20]All vessels fishing within 0-12 nm of the British Fishery Limit surrounding Guernsey must be licensed. The FMA only covers the 3-12 nm zone because it recognises that the 0-3 nm zone is, pursuant to Convention, an “exclusive fisheries zone”.

[21]Before 1st February 2013, which was the commencement date for the 2012 law predicated on the FMA, there was no formal licensing scheme within the 0-12 nm zone. My understanding of Mr Morris’ evidence, although Ms Blackmore criticised its lack of focus, is that licences were granted by the Department to those who possessed, usually through purchase, sufficient “entitlements” to fish. Seen in this way, “entitlements” are transferable commodities with an economic value, and Peter Le Cheminant and Mr Fallaize have explained this in greater detail. I will come to these commercial aspects in due course. Before 1st February 2013, albeit informal in nature, there was also a reciprocal licensing scheme in place inasmuch as Defra accepted that holders of Bailiwick licences could acquire rights to fish outside the 12 nm limit. The mechanics of exactly how this occurred are irrelevant for present purposes, but it should be noted that pursuant to these arrangements(i) Bailiwick vessels fishing beyond the 12 nm limit were subject to EU quota, and

(ii) UK vessels fishing within Bailiwick waters were not subject to EU quota. In both cases the catch would be counted against the TAC. On my understanding of Mr Morris’ evidence, Bailiwick vessels could also apply to Defra or the MMO (once it existed) for a UK licence, and the owners of vessels over 10 metres have been advised that they should obtain a UK licence before they could apply for a Bailiwick licence.

[22]The “entitlements” which did, and still do, found the basis for a licence application constitute an important plank of Ms Demetriou’s A1P1 argument. I have already said that they are transferable commodities. It should also be explained that a Bailiwick “entitlement” is not just transferable within Guernsey. An aspirant fisherman in Guernsey may purchase “entitlements” from anywhere in the UK, and an aspirant fisherman in Aberdeen may purchase “entitlements” from a man in Guernsey who, say, is seeking to retire. The extent to which the FMA operates to regulate this transfer activity impacts on Ms Demetriou’s argument that A1P1 is engaged.

[23]I will need to examine the FMA in greater detail, but it may be helpful to summarise the post-February 2013 licensing regime at this stage. Specifically:(i) subject to establishing a track record, usually by purchasing “entitlements”, and to any other criteria the Department may require, the owners of vessels under 10 metres will be issued a Bailiwick licence which in practice has enabled them to fish within the 0-12 nm zone, but not outside it, without EU quota restrictions. I put the matter in these terms because that is how the Department has administered and effectuated the FMA.

(ii) Bailiwick licence holders may then apply free of charge to the MMO for a reciprocal licence, which will normally be granted. This reciprocal licence permits fishing outside the 12 nm zone but subject to EU quota limits. It also permits the landing of catches at EU ports. The reciprocal arrangements naturally also apply mutatis mutandis to UK licence-holders who seek to fish within the 3-12 nm zone.

(iii) the owners of under 10 metre vessels may apply for a full UK licence in preference to a reciprocal licence. The practical differences between full UK licences and reciprocal licences are explained under paragraphs 28 and 29 of Mr Morris’ first witness statement, but to the extent that paragraph 28 might be read as suggesting that only full UK holders may land fish at EU ports, I believe that Mr Morris must be in error. Holders of reciprocal licences may also do so.

(iv) the owners of vessels over 10 metres are required by the Department to apply for a full UK licence before applying for a reciprocal Bailiwick licence. On my understanding of Mr Le Cheminant’s evidence, his Bailiwick licence enables him to fish on a “non-quota” basis within the 3-12 nm zone, and his UK licence enables him to land that catch at any UK or EU port.

[24]Of the 159 under 10 metre vessels referred to under paragraph 10 above, only 33 have licences issued by the MMO to allow them to fish in the UK/EU waters outside the 12 nm limit. Paragraph 38 of Mr Williamson’s witness statement rather suggests that all 33 within this cohort hold reciprocal licences, without any holding full UK licences, but nothing turns on this. The reasons why so few have sought reciprocal licences are that the 12 nm zone possesses significant local shellfish stocks which most of the fleet focuses on, and/or that the smaller boats do not seek to venture further afield.

The FMA and the Memorandum of Understanding (“MoU”)

[25]It is convenient to consider the relevant provisions of these documents before addressing the relevance, if any, of any “pre-contractual” or “post-contractual” dealings. I place inverted commas around these terms for the straightforward reason that it is common ground between the parties that the FMA and the MoU are not legally binding. The former may best be described as a high-level concordat between two governments, an articulation of the general principles intended to guide their dealings regarding fisheries policy in the Bailiwick, and the relationship between Guernsey and the UK; the latter as a practical framework for the application of those principles by both Guernsey and the MMO in their respective domains.

[26]The parties to the FMA, which was signed on various dates between September and November 2011, are the four fisheries administrations, Guernsey, and the counterpart departments in Sark and Alderney. (I note that the version included in the bundle has not been signed by Marine Scotland). The relevant parts of the Preamble are, in my view, as follows:

“It [the FMA] sets out the main aspects of the arrangements for the management of fisheries between the UK and the Bailiwick of Guernsey in British fishery limits adjacent to Guernsey [in the context of the FMA, the 3-12 nm area] … 1. The implementation of CFP rules and regulations in Bailiwick waters. … Fisheries matters in the 3-12 nm area must take account of relevant Bailiwick, UK, EU and international obligations, and whereas fisheries … in the 12 mile area should be managed in a manner consistent with UK and EU legislation and procedures.”

[27]As for the main body of the FMA:

“1. Except as may otherwise be agreed, … , members of the Commission [Guernsey, Alderney and Sark] agree: a. To keep the rules and laws relating to the regulation of fishing and the management and conservation of seafish and shellfish in the 3-12 mile area consistent with the requirements of enforceable EU law relating to sea fishing and UK policy in relation to such matters … b. To accept that there will be concurrent UK and Bailiwick of Guernsey jurisdiction in relation to the 3-12 mile area. … 5. Guernsey [etc.] will agree a MoU with the MMO on operational aspects of fishery management. These will include agreeing how the Islands will manage the licensing of vessels, quota management, … … 9. Within the 3-12 mile area the Commission shall operate a restrictive licensing scheme for British registered fishing vessels parallel with that operated in the UK. 10. Owners of vessels registered in Guernsey and holding a valid licence to fish within the 12 mile area … may apply for and will normally be granted by Defra an equivalent licence to fish in UK waters outside the 12 mile area … The Department agrees to operate reciprocal arrangements for UK registered and licensed vessels wishing to fish within the 3-12 mile area. When determining licence applications to fish in the 12 mile area the Department may have regard to whether vessels have an established record of fishing in those waters. 11. The issue and transfer (including aggregation) of licences that are transferable between fishing vessels registered in the Bailiwick of Guernsey and those registered in the UK shall be subject to the same rules as apply to equivalent UK licences, as set out in the MoU. 12. Except insofar as is allowed by paragraph 1(a), the Department shall ensure at all times that fishing vessel licences issued by it contain conditions and limitations equivalent to those contained in comparable UK licences. 13. The Commission and the MMO will hold annual meetings to discuss yearly quota for key species in the Islands Fisheries. 14. TAC stocks caught by any registered fishing vessels within or without the 12-mile area shall count against the quotas allocated to the UK under the CFP.”

[28]All four fisheries administrations were signatories to the FMA and clause 20 of the Concordat between them (which post-dates the FMA) provided:

“Crown Dependencies For the purposes of the issues covered by this Concordat Crown Dependency vessels will be treated as part of the English fleet. Defra will lead on the negotiation of management arrangements with the islands which will be set out in a single UK/Island FMA …”

One of the principal purposes of the Concordat was to establish further ground-rules for the fair allocation and distribution of EU quotas. I therefore agree with Mr Eadie that it provides strong support for Defra’s position that it clearly thought that the FMA requires the application of EU quotas within the 3-12 nm zone. There would be no other reason to designate Crown Dependency vessels as part of the English fleet.

[29]The MoU between Guernsey and the MMO was signed in August and September 2011. Its relevant provisions are as follows:

“2.3 The [parties] agree that this Memorandum is not legally binding between them and does not create any legal rights or obligations. It is a statement of their shared intention to work together in a spirit of co-operation. … 3.1.2 The MMO’s sea fisheries responsibilities include: … • Managing UK fisheries quotas. ... 5.2 Quota Management 5.2.1 MMO will provide [Guernsey] with any information/documentation relevant to the administration of quota stocks in ICES Division VIIE. 5.2.2 MMO and [Guernsey] will meet regularly to discuss the management of quota stocks in ICES Division VIIE.”

[30]Only after the FMA and the MoU were in place did the UK give its consent to the Order in Council ratifying a Projet de Loi, entitled “The Sea Fish Licensing (Bailiwick of Guernsey) Law, 2012”, registered on the Records of the Island of Guernsey on 27th July 2012. The Order in Council is silent as to EU quotas; it lays down prescribed mechanisms for the grant of licences by the Department. To my mind, Article 2, sub-articles (5) and (6) are of interest:

“2(5) The licensing powers conferred on the Department by this Law may be exercised so as to limit the number of fishing boats, or of any class of fishing boats, engaged in fishing in any area, or in fishing in any area for any description of fish, to such extent as may appear to the Department to be necessary or expedient for the regulation of sea fishing. [my comment is that the provision is clearly broad enough to enable the Department to impose conditions which reflect EU quotas, and to the extent that the FMA predicates adherence to the CFP, would mandate the imposition of such conditions.] 2(6) A licence under this section – … (b) may be revoked or suspended if it appears to the Department – (i) to be necessary or expedient for the regulation of sea fishing. [my comment is that, although licence holders would therefore be aware that licences could be revoked by the Department, this is not of course what happened in the present case.]”

[31]Defra’s power to suspend UK and reciprocal licences, exercised in its own right or through the agency of the MMO, is identical to that of the Department in Guernsey: see section 4(9) of the Sea Fish (Conservation) Act 1967.

[32]I should also refer to two provisions in the 2014 Guernsey Fishing Vessel Licence (0-12 nm Limit Licence) Schedule and Conditions (the second provision does not appear in the most recent version of the licence conditions):

“3. Subject to the limitations set out below or on any licence also held by this vessel, and to any prohibition imposed by enforceable UK, European or local fisheries legislation, this licence hereby authorises the above named vessel to fish within the 0-12 nm limit of Bailiwick waters. … 17. This licence is subject to the quota limitations available to the UK fishing fleet. In addition the Department reserves the right to impose stop-fishing orders on this licence to prohibit the landing of certain species of fish for any defined period of time …”

[33]Although no party is requiring me to construe these various interlocking documents and provisions, all three seek to persuade me that their respective cases (and here the Defendants join common cause) is stronger, or perhaps much stronger, than their opponents’. I propose to approach the matter in this way. I will not reach any definitive conclusion as to whether the FMA imposes any form of commitment on Guernsey, short of a legally binding obligation, to accept or recognise that EU quotas do or should apply to the 3-12 nm zone. Not merely does this reflect the firm wishes of the parties, which I must respect, I recognise that there are juridical difficulties in construing a document which is not of contractual force. Do I apply what may be described as ordinary objective principles of interpretation (see, for example, ICS Ltd v West Bromwich Building Society

[1998] 1 WLR 896

), or do I apply the more fluid, purposive approach set forth in international instruments such as the Vienna Convention on the Law of Treaties, 1989? These varying approaches were floated in oral argument, but no distinct submissions were made. For all these reasons, I will stop short of expressing any concluded view.

[34]However, it seems to me that I should go this far. First, I am clearly of the view that Defra’s position is stronger than Guernsey’s. There are various references in all these materials, taken together, to quota management within the 3-12 nm zone. The 2014 licence conditions mention “the quota limitations available to the UK fishing fleet” (although “applicable” would have been clearer), and the FMA refers to “enforceable EU obligations”. Further, a consideration of the surrounding documentation, including the Concordat between the four fisheries administrations, provides fairly compelling support for the proposition that it was certainly the intention of Defra, and therefore “UK policy” within the meaning of the FMA, that Guernsey would accept EU quotas within the 3-12 nm zone in consideration for having continued licensing autonomy, in line with the historical position, however informal, in relation to that zone. It follows that I must conclude that Defra was, and is, acting both reasonably and in good faith in robustly adhering to the stance that the FMA mandates, in a non-contractual sense, adherence to EU quotas. This conclusion has obvious ramifications on Defra’s public law obligations, if any, in relation to the FMA.

[35]Secondly, I also fully accept that Guernsey was, and is, acting reasonably and in good faith in taking the contrary position. In one obvious sense, Guernsey’s position is simpler to articulate than Defra’s. The backdrop for the interpretation and application of the FMA, viewed in its proper context, is that both parties accept that Guernsey is not directly bound by the EU quotas flowing from or out of the CFP. Accordingly, how and why would Guernsey agree to abide by indirect obligations, or quasi-obligations, in circumstances where these do not arise directly? Moreover, and connectedly, Defra has at all material times been aware that Guernsey was not requiring Bailiwick fishermen to respect EU quotas; and, when consideration is given to the post-FMA period, that remained the case. Defra was acquiescent, but (I would add) there has not been, until recently, any need to rock the boat. At the very least, as Ms Demetriou submitted, it would require express, clear language in the FMA to effect what could only be regarded as a fundamental change in the position, and such language is conspicuously lacking. To the extent that regard may be had to it, Mr Morris is quite clear in his evidence that the application of EU quota rules to Guernsey was not discussed in the negotiations for the FMA. The references to “enforceable EU obligations”, and kindred language, do not predicate the existence of such obligations: Guernsey need honour them only to the extent that they are enforceable (and, so this argument runs, they are not), and it does not dispute that they apply outwith the 3-12 nm zone. Further, the epithets “parallel” and “equivalent” in paragraphs 9 and 12 of the FMA are not intended to import exactly comparable licences in all material respects; they indicate that in general terms the licences should be similar.

[36]In concluding that Defra’s position is stronger than Guernsey’s, I have placed in the scales the contrary arguments I have just outlined. Indeed, I may well have gone further than did Ms Demetriou in advancing Guernsey’s case (she reasonably took the view, given Defra’s stance, that the contrary arguments did not require strong advocacy). However, these arguments are outweighed, albeit not overwhelmingly, by the breadth of submission advanced by Mr Eadie.

[37]The parties have spent time in their evidence in drawing my attention to what I have described as “pre-contractual” and “post-contractual” dealings. I attach little weight to this evidence. If I were construing a contract, such dealings would carry, at best, little weight. I am not construing a contract as such; and, I reiterate, all parties are in accord that I should not express a concluded view. At its highest, therefore, this evidence can only bear on the strength of the parties’ respective contentions at the margins of their cases. Finally, and in any event, my assessment of this evidence is that there are strands which suit both parties’ cases, but the overall picture is mixed and equivocal. That said, there is nothing in this evidence which undermines the conclusion set out in paragraph 34 above. It follows that I see no need to refer to this evidence in this Judgment.

[38]I should touch on Ms Demetriou’s submission, advanced in her Skeleton Argument but not pressed in oral argument, that light is thrown on the Guernsey FMA by the presence of two clauses in the 1996 Jersey FMA which do make clear that EU quota rules should apply. Mr Gooding has effectively rebutted this point at paragraphs 56 and 57 of his witness statement. In any event, and assuming that contractual principles of interpretation might apply by analogy, I would be slow to deploy an agreement with a different party as a permissible aid to construction of the agreement at issue; and I also take Mr Eadie’s point that it would be surprising if Defra would agree different licensing regimes with separate governments bound by identical law.

The Events Leading to the Suspension of the FMA

[39]On my understanding of the evidence, the FMA worked entirely satisfactorily between 1st February 2013 and the end of 2014, with Guernsey continuing to operate on the basis that EU quotas did not apply to Bailiwick vessels fishing within the 3-12 nm zone.

[40]However, difficulties arose in the second half of 2014 because the UK quota for Skates and Rays had fallen, yet Guernsey vessels, in particular one over 10 metre boat, the “Amy Blue”, was catching large numbers of these fish. The parties are not in agreement as to whether, in proportionate terms, the “Amy Blue’s” share was really significant, and in this regard I can see that it depends on whether the denominator of the fraction is “sector” or “non-sector”. In my view, this is an arid debate.

[41]On 12th October 2014 the MMO closed ICES VII Skate and Ray fishery to English vessels as the English share of the UK’s quota for the calendar year had been exhausted.

[42]On 30th January 2015 a meeting took place in London between officials from Defra, the MMO and Guernsey. The topic was overfishing of Skates and Rays. Mr Morris’ evidence is that it was made clear that Defra’s interpretation of the FMA was that EU quotas applied to all vessels fishing within the 12 nm zone. Mr Gooding’s evidence is that Guernsey officials expressed the view that they were not obliged to comply with quota controls “but agreed to discuss the matter urgently with Bailiwick partners”.

[43]On 16th March 2015 Defra wrote to Guernsey expressing strong concerns that the latter was not complying with its obligations under the FMA, and that the activities of a single Guernsey vessel in particular (unnamed, but clearly the “Amy Blue”) were having a significant effect on non-sector quota, which “has proved extremely unpopular with the English industry who feel they are being unfairly penalised for the uncontrolled actions of a small number of Guernsey vessels”. The letter continued:

“I am therefore now writing to ask you with immediate effect to ensure that your vessels observe the same catch limits as English vessels and will if necessary in future observe closures imposed when English over 10 metre non-sector and under 10 metre quota allocations are exhausted. This applies to all quota stocks in ICES Area VIIe and not just Skates and Rays.”

Thus, although the immediate flashpoint was overfishing of Skates and Rays, Defra was seeking a broader commitment from Guernsey to abide by the FMA.

[44]Guernsey did not reply to this letter until 17th April. On 9th April 2015 Defra and Guernsey met in Guernsey to discuss quota controls. Mr Gooding’s evidence is that “Guernsey refused to impose quota controls or to agree to an amended FMA”. On 17th April the Chief Minister of Guernsey wrote to the Minister of State at Defra stating that “there has been a change in the UK’s interpretation of the FMA since we met last autumn”, and that the voluntary application of quota measures would be “a near impossible task given the unique set of relationships between the authorities in the Bailiwick”.

[45]On 1st July 2015 a high-level meeting took place in London involving Defra officials, the Guernsey Chief Minister, and the Minister of State. Guernsey made clear that it did not want to apply CFP rules or impose quota controls. There is no dispute between Messrs Gooding and Morris about this. Mr Morris’ recollection is that the meeting ended abruptly, and that the following day it was explained to him by Mr Porter that the Minister of State was “incensed with anger” and that Guernsey should “do as they are told”. There is no reason for me to reject this hearsay account, but it takes the matter no further.

[46]It is important that I recognise Mr Gooding’s evidence about what happened after this meeting. The Minister instructed his officials to consider the options, including requiring all vessels in the 3-12 nm zone to obtain a UK licence or to join a Producer Organisation. The various options, which in my view were wide-ranging, were then developed, analysed and considered by Defra officials. One of the options was “encouraging the “Amy Blue” to join a Producer Organisation”. I have already dealt with this issue (see paragraph 19 above), but I should also note that Mr Gooding was of the opinion that “it would not solve the wider problem”.

[47]On 13th July 2015 the Chief Minister of Guernsey wrote to the Defra Minister explaining why the Bailiwick would not impose quota controls. He accepted the existence of “general statements … in the Bailiwick FMA that on the face of it seem to support the view that quota restrictions were intended to be applied”, but that said this was displaced by other considerations, including the terminology of the Jersey FMA. The Chief Minister also stated that a challenge by a fisherman to a condition under the Guernsey Law of 2012 imposing quota restrictions was likely to be successful.

[48]Thereafter, there were internal discussions within Defra as to the way forward. On 21st July 2015 the MMO wrote to Defra advising that, were Defra to suspend the FMA, the MMO would be in a position to suspend or revoke the reciprocal licences granted by the MMO to what was described as 29 Bailiwick vessels (there is a discrepancy here with the 33 reciprocal licence-holders mentioned elsewhere, and a further discrepancy with paragraph 105 of Mr Gooding’s statement mentioning 28 such licences, but nothing turns on this).

[49]In my judgment, the following matters are clear from this narrative:(i) the FMA was operating well enough on Guernsey’s terms until an issue arose with the EU quota.

(ii) the specific problem was overfishing of Skates and Rays, but this was the immediate flashpoint, the occasion rather than the cause.

(iii) once the issue was exposed, both parties dug their heels in. More importantly, Guernsey made it quite clear, on several occasions, that it would not impose EU quotas voluntarily. I entirely reject Ms Demetriou’s submission, advanced in her Reply, that this was merely a negotiating stance.

(iv) Defra made it quite clear, in the light of the position being taken by Guernsey, that it required Guernsey to state that it now agreed to be bound by EU quotas.

(v) Guernsey then made it clear that, if this remained Defra’s stance, there would be litigation.

The Suspension Decisions

[50]On 23rd July 2015 the Minister of State wrote to the Chief Minister of Guernsey suspending the FMA with immediate effect. The letter made clear that the precipitating factor was the activities of one vessel, the “Amy Blue”, “being responsible for over two-thirds of total English non-sector landings of Skates and Rays this year”. Further:

“This is clearly a serious problem and I welcome the statement in your letter that there is a willingness to work with us to find a solution. Unfortunately, you also state that the solution cannot include the implementation of TAC [I interpolate here that Guernsey catches do count toward TAC] and quota measures in Bailiwick waters. This of course lies at the heart of our different interpretation of the FMA. You say that the FMA was never intended to be legally binding. It does nevertheless place obligations on all parties. Our recent conversations indicate there is no common understanding between us of what those obligations are. Without that understanding, it is difficult to see how the FMA can continue to function effectively. … As a consequence of this and in the resulting absence of any agreed arrangements between us over reciprocal access to each other’s waters, the MMO have confirmed their intention to temporarily suspend the reciprocal UK licences issued under the terms of the FMA to Bailiwick registered vessels with effect from 1st August. Furthermore, in view of your contention that you are not subject to the rules of the CFP, I am minded to direct the MMO to suspend the UK licences of all other Bailiwick vessels.”

The letter also stated that the suspension of the current FMA would operate “until we have managed to bridge the gap between us and have drawn up a new unambiguous FMA which is clearly understood and agreed by all parties”.

[51]On or about 29th July 2015 (the bundle does not include all the letters), the MMO wrote to reciprocal licence holders informing them that the FMA had been suspended and that, in consequence, the reciprocal licences would be suspended as from 1st August 2015, until further notice. Although the MMO’s decision is formally assailed in these proceedings, I consider that it raises no separate issue or series of issues.

[52]On 17th August 2015, by which time the pre-action protocol had already been initiated, the MMO agreed (I infer, on Defra’s instructions) to reinstate the suspended reciprocal licences whilst negotiations continued. Although I also draw the inference that these negotiations have broken down, the suspensions remain lifted pending the outcome of these proceedings. If Defra succeeds, the suspensions will be re-imposed. It follows, in my view, that it would be artificial and wrong to limit a consideration of the impact of these measures on Guernsey fishermen to the 17-day period identified.

The Impact of the Decisions

[53]It is necessary to be precise about this, in view of Mr Fallaize’s A1P1 claim. There is a modicum of rhetoric in the witness statements which needs to be stripped away.

[54]I agree with Mr Gooding that, given that most Guernsey vessels only fish in the 0-12 nm zone, they were not directly affected by the suspension of the FMA – at least to the extent that they could continue to fish as before. I also agree with him that, given that over 90% of the quantity and value of fish landed by Guernsey vessels outside a Guernsey port was caught by vessels holding full UK licences, their owners were not directly affected by the suspension of the FMA because EU quota rules apply.

[55]However, the decisions carried impacts in two different respects.

[56]First, reciprocal licence holders (being owners of under 10 metre vessels) could no longer fish outside the 12 nm limit and/or land their catch at an EU port, in particular Cherbourg. Mr Gooding points out that such licence holders could still fish in the 0-12 nm zone, in practice free from quota restrictions, and that beyond the 12 nm limit they would in any event have been bound by EU quota restrictions.

[57]There is an issue between the parties as to whether Mr Fallaize has been affected by the suspension of his reciprocal licence. At various places in his evidence, he refers quite generally to exporting shellfish to France, without quantification and without supplying supporting documents. Ms Blackmore invited me to find that Mr Fallaize has failed to adduce sufficient evidence in support of his case that he landed any significant catches in France, in contradistinction to exporting fish there through or via a third party. In support of that submission, she relied on:(i) the absence of documentation, in the form of sales notes, sent to the MMO by the French authorities pursuant to their regulatory obligations,

(ii) the fact that it would be surprising if an 8.4 metre single-crewed vessel were to make frequent trips to Cherbourg (and all the more surprising in the absence of any French documentation), and

(iii) such evidence as exists is more consistent with exportation than direct landings.

[58]I have carefully considered these submissions in the light of the relative paucity of documentary evidence. I agree that this dearth is troubling, but in the circumstances of this case it is not decisive. Mr Fallaize has given sworn evidence that he lands fish in Northern France, and no application was made to cross examine him. Guernsey supplied me with copies of two “fish export returns” dated as long ago as 2014, which tend to support Mr Fallaize’s case. It is true that these are export returns, but it is clear to me, looking at each document as a whole, that Mr Fallaize’s vessel was effectuating the exports. Although there are only a limited number of reciprocal licence holders, Mr Fallaize happens to be one of them. There is also evidence that the French market is more attractive. Overall, I conclude that Mr Fallaize did, and does, land some of this catch in France, but I cannot say how much.

[59]The second respect in which the suspension decision impacted on Bailiwick licence holders was, as Mr Morris explains at paragraphs 64 and 65 of his first witness statement, that all under 10 metre vessel owners (on his information, being 141 in number) lost the ability, on account of the suspension of clause 11 of the FMA, to transfer their licences in and out of the Bailiwick. It needs to be made clear that this is a separate issue from that pertaining to the reciprocal licences, and landing catches in the EU. The point here, as I have already said, is that the “entitlements” underlying the licences have a value, that licence transfers were enabled under clause 11, and that the suspension of that clause prevented fishermen in the Bailiwick from transferring their “entitlements” to, say, counterparts in Aberdeen.

[60]Mr Fallaize calculates the value of his “entitlement” as £43,636, and states that, as a result of the suspension of the FMA, “my licence is now basically worthless”. I do not interpret this evidence as suggesting that the reciprocal element of the licence has any separate or additional value, but I doubt whether that matters for present purposes. The reciprocal licence can be applied for without charge, but I can see that in commercial terms it may theoretically add to the composite value. However, if that were really so, one would have expected all Bailiwick licence holders to have applied for reciprocal licences, and the majority have not. The correct analysis is, probably, that given that a Guernsey fisherman may always apply for a reciprocal licence, it is the “entitlement” underpinning the Bailiwick licence in which the entire economic value inheres.

[61]Mr Morris’ evidence is that the suspension of clause 11 of the FMA immediately wiped out £1.8M of the value of the Bailiwick licences. This evidence has not been contradicted. Even if I should discount the valuation for being “top end”, the amounts involved are clearly substantial. Ms Demetriou also relied on an email exchange between Defra and Guernsey on 28th July 2015:

“[To Defra from Guernsey] All understood – no all 147 are affected because you have confirmed that they are all no[w] restricted (as of the 1st August) to fishing in Bailiwick waters and that their licences or entitlements are no longer valid on the UK system. Therefore the best part of £2M of licence assets have just been wiped out of our fleet. [To Guernsey from Defra, 6 minutes later] OK I see where you are coming from. My comment was made on the assumption (hope) that this would be a temporary measure and that normal service would at some point in the not too distant future be resumed.”

Although he was not the recipient of this email, Mr Gooding does not deal expressly with this issue between paragraphs 90 and 105 of his witness statement.

[To Guernsey from Defra, 6 minutes later]

[62]There is another way in which the impacts of the suspension decision might be viewed. If Defra’s purpose was to prevent overfishing of Skate and Ray, or indeed any fish subject to quota, then:(i) holders of Bailiwick licences are free to fish unrestrictedly within the 0-12 nm zone, and (in the event that they hold reciprocal licences) are subject to EU quotas outside it: accordingly, the perpetuation (by default) of the former, and the suspension of the latter, could have no logical or practical impact on overfishing.

(ii) as Defra’s measures only impacted on under 10 metre vessels, and as the over 10 metre vessels, such as the “Amy Blue”, need full UK licences which are granted outside the FMA, it must follow that these measures could have no logical or practical impact on overfishing by the larger vessels. (I should make clear that the “Amy Blue”, when fishing in Bailiwick waters, uses its Bailiwick licence – the point here is that Defra’s decision has no impact at all on the over 10 metre vessels).

[63]These considerations formed the platform for Ms Demetriou’s submission that there was no logical or rational connection between Defra’s purpose and the measures it implemented to achieve it.

THE ISSUES

[64]The Claimants’ pleaded case (and at this stage I am considering the Claimants together) is that Defra’s and the MMO’s decisions (and, hereafter, I will only focus on Defra) were(i) irrational, because there was no nexus between means and ends, and

(ii) in breach of rights arising under A1PI of the Convention.

[65]It became clear during the course of this litigation that the irrationality challenge is advanced by both Claimants, and the A1P1 challenge by Mr Fallaize only. This is because Guernsey has no relevant A1P1 rights and cannot rely on them by proxy.

[66]But Mr Eadie raises a logically anterior point, which is that the FMA does not give rise to justiciable issues, because it is in the nature and character of being a high-level, non-legally binding set of concordats, essentially political in character, between two governments. It is appropriate and convenient to address this point first of all.

JUSTICIABILITY

[67]Mr Eadie’s essential argument was that the present case was all about the exercise of Prerogative power in a domain which has traditionally been regarded as inappropriate for judicial review, because the subject matter is analogous to the making of treaties between sovereign states and is essentially political. Thus, the courts apply a self-denying ordinance on account of considerations of institutional competence and manageable judicial standards.

[68]Mr Eadie of course accepts that Guernsey is not an independent, sovereign state. However, it is not part of the UK and enjoys considerable autonomy in the form of a democratically-elected legislature and an independent executive. It is on this basis that the argument from analogy is advanced: the FMA is akin, so the submission runs, to a treaty, concordat, or Memorandum of Understanding between two sovereign states, each with their own separate, conflicting interests.

[69]In support of this submission, Mr Eadie took me to a number of authorities. In Buttes Gas and Oil Co v Hammer

[1982] AC 888

, Lord Wilberforce held that there were “no judicial or manageable standards by which to judge” issues arising in connection with transactions with or by foreign sovereign states, and the courts in our jurisdiction should therefore regard these issues as non-justiciable and incapable of being entertained. The rubric “no judicial or manageable standards” was gathered from a decision of the Fifth Circuit Court of Appeals in the US. Although Lord Wilberforce’s formulation has by no means been abandoned, I suspect that modern judicial taste prefers “institutional competence”. Any difference is one of form, not substance.

[70]In CCSU v Minister for the Civil Service

[1985] AC 374

, there was a slight difference in emphasis between Lords Diplock and Roskill as to the circumstances in which the exercise of Prerogative power might be amenable to judicial review. The CCSU case was all about national security, and in such a context judicial review was inappropriate. Lord Diplock found it difficult to envisage circumstances where judicial review might run if “the prerogative remains the only source of relevant decision-making power” [at 411D]. Lord Roskill’s approach, which is more in line with recent authority on this subject, was broader: “But I do not think that the right of challenge can be unqualified. It must, I think, depend upon the subject matter of the prerogative power which is exercised. Many examples were given during the argument of prerogative powers which as at present advised I do not think could properly be made the subject to judicial review. Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others are not, I think, susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process.” [at 418B-C] Mr Eadie relies on the “making of treaties” (by analogy) and Lord Roskill’s reference to “nature and subject matter”.

[71]In R (oao Abbasi) v FCO

[2002] EWCA Civ 1598

, Lord Phillips MR drew a distinction between decisions affecting foreign policy, which fell into “the forbidden areas” (see paragraph 106(iii)), and decisions taken at a diplomatic level directed to the position and situation of particular British citizens, which in his view “would seem unlikely itself to impinge on any forbidden area” (see paragraph 106(iv)). Thus, the existence of an individual’s rights, characterised by Lord Phillips on the facts of the case before him as “fundamental rights”, was capable of bringing the claim within the proper scope of judicial review. An example of a case which clearly fell on the other side of the line, and therefore within the terrain of forbidden areas, is CND v FCO and others

[2002] EWHC 2777 (Admin)

, which in my view did not take the argument any further. Nor did Mbasogo v Logo Ltd

[2007] QB 846

which was a case about the exercise of sovereign authority in another state.

[72]A good example of a more recent case which focused on the question of rights is R (Gentle) v Prime Minister

[2008] 1 AC 1356

. At paragraph 8(2) of his Opinion in the House of Lords, Lord Bingham said this: “The draftsmen of the European Convention cannot, in my opinion, have envisaged, that it could provide a suitable framework or machinery for resolving questions about the resort to war … It must (further) have been obvious that an inquiry such as the claimants’ claim would be drawn into consideration of issues which judicial tribunals have traditionally been very reluctant to entertain because they recognise their limitations as suitable bodies to resolve them. This is not to say that if the claimants have a legal right the courts cannot decide it. The defendants accept that if the claimants have a legal right it is justiciable in the courts, and they do not seek to demarcate areas into which the courts may not intrude. They do, however, say, in my view rightly, that in deciding whether a right exists it is relevant to consider that exercise of the right would entail. Thus the restraint traditionally shown by the courts in ruling on what has been called high policy – peace and war, the making of treaties, the conduct of foreign relations – does tend to militate against the existence of the right …” [at 1367B-E] The overall context, on the facts of Gentle being the decision to invade Iraq, militated against the imposition of a procedural obligation under

Article 2 of the ECHR

. The claimants in that case could not point to the existence of a right, under the Convention or otherwise, which existed independently of and/or anterior to the matters complained of, namely their sons’ deaths. However, the position would clearly be different, as Lord Bingham explained, if the existence of such an independent or anterior right could be demonstrated.

[73]Mr Eadie also observed that in Gentle the House of Lords approached the issue not on the basis favoured by the Court of Appeal, but on the footing suggested to them by Mr Jonathan Sumption QC appearing for the Crown in that court, but not below. Mr Sumption’s submission is recorded by the Law Reporter as follows: “The Court of Appeal decided this matter on the simple ground of non-justiciability. There are two different ways in which that term is used: judicial forbearance and lack of legal relevance. In this case the only sense in which non-justiciability occurs is lack of legal relevance. The political nature of the decision at issue, the Government’s handling of international relations, is the reason why the Convention should not provide a platform for the Claimants to challenge it. A Government’s decision to engage in military operations does not engage the substantive duty under article 2 and, consequently, there is no legal right to have the decision investigated.” [at 1361 G-H] I agree with Mr Eadie that the majority of their Lordships followed Mr Sumption’s elegant approach. A proper analysis of the whole context meant that the right sought to be invoked simply could not arise. However, and as will be seen, I disagree with Mr Eadie that an identical approach may be applied to rights arising under A1P1 of the Convention.

[74]By the time Shergill v Khaira

[2015] AC 359

was decided, being the last case referred to me as relevant to this issue, Mr Sumption had become Lord Sumption JSC, and he was joint author, along with Lord Neuberger PSC and Lord Hodge JSC, of the single reasoned judgment of the Supreme Court. There, we may see the maintenance of the conceptual division between “judicial forbearance” (paragraph 42) and “lack of legal relevance” (paragraph 43), although these labels were not deployed. The first category, based on a lack of institutional competence in the judiciary based on the subject-matter, is seen as having rare application. In essence: “The distinctive feature of all these cases is that once the forbidden area is identified, the court may not adjudicate on the matters within it, even if it is necessary to do so in order to decide some other issue which is itself unquestionably justiciable.” [at 377H] As for the second category of case: “It comprises claims or defences which are based neither on private legal rights or obligations, nor on reviewable matters of public law. Examples include domestic disputes; transactions not intended by the parties to affect their legal relations; and issues of international law which engage no private right of the claimant or reviewable question of public law. Some issues might well be non-justiciable in this sense if the court were asked to decide them in the abstract. But they must nevertheless be resolved if their resolution is necessary in order to decide some other issue which is itself justiciable. The best-known examples are in the domain of public law. Thus, when the court declines to adjudicate on the international acts of foreign sovereign states or to review the exercise of the Crown’s prerogative in the conduct of foreign affairs, it normally refuses on the ground that no legal right of the citizen is engaged whether in public or private law … But the court does adjudicate on these matters if a justiciable legitimate expectation or a Convention right depends on it.” [at 377H-378D]

[75]Mr Eadie relies on paragraph 42 in this way. He submits that, if a case falls within the forbidden area, it does not matter if individual rights are invoked, because the issue is simply not justiciable. Alternatively, he submits, if I understood him correctly, that the context serves to determine, or at the very least guide, the court’s assessment of whether the asserted “right” in fact exists. This submission was also maintained in relation to paragraph 43.

[76]The first category (paragraph 42) is recognised of being of rare application. The paradigm cases mentioned by the Supreme Court are “the non-justiciability of certain transactions of foreign states and of proceedings of Parliament” [at 377F]. Buttes Gas is specifically mentioned in this context. On the other hand, the foregoing citation from paragraph 43 makes clear that “the exercise of the Crown’s prerogative in the conduct of foreign affairs” is normally analysed as being off-limits because no legal right of the citizen is engaged. This tends to suggest that, to the extent that Mr Eadie must rely on arguments by analogy, paragraph 43 fits the present case and not paragraph 42.

[77]However, there is another reason for holding that the instant case should not be regarded as one all about “forbidden areas”. On the assumption, contrary to the foregoing, that paragraph 42 might apply to the Crown’s treaty making powers, I do not consider that the FMA can properly be envisaged as analogous to a treaty with a foreign sovereign state. The court abjures entry into the FCO’s decision-making in this regard because it simply can have no idea as to why and how the Crown enters into treaties in the national interest. The evidence and expertise are not available. A portcullis comes down and what lies behind it is not merely impenetrable, it is unfathomable. On the other hand, none of these difficulties exists in relation to the FMA. The assertion that the decision-making is essentially “political” travels only a limited distance; that would be true of many reviewable decisions, to the extent that political motives and considerations may underlie them. In this particular field, the court has complete transparency and full competence. It can understand the statutory scheme, both domestic and EU; it can understand the minutiae of fisheries policy and practice; and, it can construe the FMA – if asked to do so. I am not underplaying the difficulties inherent in that interpretative exercise, but the court is as well placed as any entity to do the job. Here, there are no arcana; there are no esoteric rules; there is no mystery in terms of the subtleties and gentle machinations of international diplomacy. I therefore disagree with Mr Eadie that this is a “forbidden areas” case.

[78]The focus must accordingly be on the second category (paragraph 43). It is convenient to examine the position of Mr Fallaize. If and to the extent that he may demonstrate an interference with his Convention right under A1P1, it seems to me that the legality of the suspension of the FMA is justiciable on the straightforward basis that, as Cranston J put it in R(Al-Haq) v FCO

[2009] EWHC 1910 (Admin)

, there is a “domestic foothold”. Mr Fallaize’s (assumed) A1P1 right may have an autonomous character and meaning under the Convention, but in my view it(i) clearly arises under domestic law, being scheduled to the HRA, and

(ii) enjoys a pre-existing status anterior to the suspension of the FMA. As it happens, Mr Fallaize was granted his licence before the FMA was executed, but the position would be the same even if his rights arose after 1st February 2013. On any analysis, Mr Fallaize acquired private rights, which at this stage I shall assume are recognised by A1P1 of the Convention, under arrangements which in no intelligible sense flowed directly from the FMA; and – as I have said – the analysis would be the same even if the material dates arose much later. Put another way, the present case is clearly different from the sort of case exemplified by Gentle where the nature of the relationship between the parties and the context of the decision at issue meant that the putative right simply could not arise. The posited Article 2 right in Gentle could not be divorced from the context; the posited A1P1 right in the present case can.

[79]I would therefore hold that Mr Fallaize’s claim under A1P1 of the Convention is justiciable. Arguments as to whether a right under A1P1 exists, and (if so) a breach of A1P1 arises on these facts, are conceptually distinct from matters of justiciability.

[80]This leaves Guernsey’s and Mr Fallaize’s irrationality claims, where the analysis is not wholly straightforward.

[81]Given that the FMA was not intended to create legally binding obligations, it should be apparent that it cannot confer private rights, or impose correlative duties of a private law nature. But does it confer, recognise or predicate rights of a public law nature? Is this what the Minister meant, in his letter dated 23rd July 2015, when he said that the FMA does “nevertheless place obligations on all parties”? For these purposes, the focus must remain on paragraph 43 of Shargill.

[82]I agree with Mr Eadie that circularity of reasoning must be eschewed. If the court’s task is to identify the existence of a public law right and correlative public law duty, this must be correctly ascertained, and not asserted.

[83]Although both Defra and Guernsey have different interests in relation to the 3-12 nm zone, both clearly have roles to play and functions which are governmental in character. Guernsey has functions under its Law of 2012 and, regardless of constitutional Conventions which have operated for the parties’ common convenience, Defra has a direct interest, arising under UK statute, in fishing activities conducted within the 3-12 nm zone. In my judgment, all parties to the FMA owed obligations which may be characterised as being of a public law nature.

[84]The issue may, I think, be highlighted by positing some particular facts. Imagine a FMA which is crystal-clear in its terms, and imagine also that it provides that the EU quota regime is not applicable. Defra now wishes to abrogate or suspend the FMA in the light of pressure from UK fishermen who say that it is only fair that EU quotas apply to Bailiwick waters. It is clear that Defra is wrong about this, but it proceeds nevertheless to suspend the FMA. It also threatens to impose an Order in Council on Guernsey which applies EU quotas if Guernsey does not succumb. I would hold that Defra’s actions in such hypothetical circumstances would be justiciable, and – in the event that legislation in the form of an Order in Council were enacted – it too would be justiciable. I therefore agree with Ms Demetriou that the fact that Defra could in theory legislate by Order in Council in this respect is a clear indication that we are outside terra incognita, and striding instead on the terrain of judicial review.

[85]Mr Eadie submitted that the decision of the House of Lords in R (Bancoult) v FCO

[2009] 1 AC 453

is not authority for the proposition that Orders in Council are necessarily amenable to judicial review, because the argument that was being advanced by the Crown was quite limited. My interpretation of Leading Counsel’s submission was that he took the only point that was reasonably arguable, and that it was roundly rejected. Lord Hoffmann held in terms that prerogative legislation is reviewable on ordinary judicial review principles, including rationality. Further, in the Barclay case (loc.cit.) the Supreme Court held that Orders in Council made on the advice of the Government of the United Kingdom acting in whole or in part in the interests of the United Kingdom were, generally speaking, amenable to judicial review.

[86]Additional researches conducted after the hearing have led me to recall that in R (Quark Fishing Ltd) v FCO

[2006] 1 AC 529

it was conceded by the Secretary of State that Instructions given by the Executive, acting in whatever capacity, to British Overseas Territories are susceptible to judicial review (see paragraph 65 of the Opinion of Lord Hoffmann, and the reasons he gives for supporting the Crown’s position). I am appreciative of the constitutional distinction between British Overseas Territories and Crown Dependencies, but these are irrelevant to the question presently under scrutiny. If prerogative legislation and executive Instructions are amenable, I cannot envisage any reason of logic or policy which could lead to the conclusion that agreements between the Crown, acting in right of the UK, and a Crown Dependency are not; particularly in circumstances where the FMA was a necessary step to the UK consenting to the law of 2012.

[87]I would therefore also hold that the irrationality claim, whether advanced by Guernsey or by Mr Fallaize, and for these purposes there is no distinction between them, cannot be defeated on the basis that the suspension of the FMA is outside the proper ambit of judicial review.

IRRATIONALITY

[88]Having established the factual springboard identified in paragraph 62 above, Ms Demetriou advanced the beguilingly straightforward submission that there was simply no rational or logical connection between the steps taken by Defra on 23rd July 2015 to suspend the operation of the FMA, and the objective to be achieved. She submitted that care must be taken to formulate or describe this objective both precisely and narrowly. There is no evidence of any underlying problem with the operation and administration of the FMA. A specific issue arose at the end of 2014 in relation to Skates and Rays, which issue was thrown into sharp relief by the activities of essentially one vessel, the “Amy Blue”. Instead of focusing on the taking of steps which might properly address that issue, Defra is seeking to strike at some systemic problem which does not exist; and, moreover, is animated by ulterior motives including the desire to place political pressure on Guernsey and/or punish its Administration.

[89]In further support of her irrationality case, Ms Demetriou drew attention to Mr Williamson’s evidence that, during the 17-day suspension period, there was no significant impact on fishing activity.

[90]Some time was taken in oral argument in addressing the test I should apply in deciding this issue. I shall assume for these purposes that private rights are in play, being the rights of licence holders. The existence of these rights serves, at least to some extent, to intensify the standard of review, but I do not lose sight of the fact that Defra must balance the rights and interests of all UK fishermen. In my view, my resolution of this irrationality challenge does not depend on any precise formulation of the legal test, and I need not examine this issue further.

[91]I agree with Ms Demetriou that if Defra’s suspension decision were intended to deal just with the specific issue relating to Skates, Rays and the “Amy Blue”, there would be force in her submission that there would be no rational connection between the problem and its solution.

[92]However, I cannot accept her narrow characterisation of the problem. I refer to the matters set out under paragraph 49 above. It is quite clear to me that Defra reasonably believed that the FMA was intended to impose EU quotas in the 3-12 nm zone, and that (as I have held) it has a reasonably good case in that regard. It is also clear that Guernsey was consistently adopting the stance that EU quotas simply did not apply to its waters, and that it would not accept their voluntary imposition. After a number of months of negotiation, meetings and correspondence, Defra reached the conclusion that the FMA had fundamentally broken down because the parties to it were in disagreement about a core principle, namely whether the FMA reflected UK policy to the effect that EU quota rules should apply, and were applied through the provisions of the FMA itself, construed contextually. In my judgment, this was an entirely reasonable conclusion to reach, and justified the suspension of the FMA on that basis. It was clearly Defra’s intention to bring Guernsey back to the negotiating table, and a reasonable inference that, without suspending the FMA, Guernsey’s heels would remain firmly dug in. Accordingly, there was a logical and rational connection between the problem, and its solution.

[93]It is also clear from Mr Gooding’s evidence that a range of possible options was considered, and rejected. For the purposes of Ms Demetriou’s irrationality case, I do not accept that striking a fair balance between the interests of Defra and the rights of licence holders was required. What is clear on the available evidence is that Defra took into account, in general terms, the competing interests of Bailiwick and UK fishermen. But, if I am wrong about that, my conclusions on “fair balance” under the next section of this Judgment lead to the same outcome.

[94]In Defra’s decision letter dated 23rd July 2015, the Minister said that he was minded to instruct the MMO to suspend the UK licences of all Bailiwick vessels. Such action would have been primarily directed at the over 10 metre vessels, and would therefore have aimed in a more focused manner at overfishing of Skates and Rays. However, it was not Ms Demetriou’s case (whether under the banner of irrationality or A1P1) that this less intrusive measure should have been pursued, in preference to suspension of the FMA. I deduce that Guernsey has good political reasons for not running that argument, and I can see problems with it in any event.

[95]These reasons are sufficient to dispose of Ms Demetriou’s irrationality ground, but I should mention Wheeler v Leicester CC

[1985] AC 1054

, recently applied by HHJ Stephen Davies in R (oao Trafford) v Blackpool BC

[2014] EWHC 85 (Admin)

. At paragraph 63 of his judgment, the Deputy

Judge said this:

“In short, it appears to me that the decision in Wheeler is authority for the proposition that a public body has an overarching duty to act fairly when seeking to achieve its objectives in exercising its public functions and, by seeking to use those powers to punish someone who had not acted in any way which could properly justify such punishment, it misused its powers and, thus, acted unlawfully and Wednesbury unreasonably.”

[96]Ms Demetriou relied on this citation in support of her A1P1 submissions, but I can address it at this stage. Their Lordships did not all analyse the issue in the same way, but on one view, being the best view from Guernsey’s perspective, the Wheeler case is an application of the principle that a body exercising public functions must not act on grounds collateral to the objective to be achieved and/or for improper motives. In my judgment, Defra was not seeking to punish Guernsey. Having run out of options, it was seeking to place political pressure on Guernsey in circumstances where, as I have found, it was entitled to do so, because the relationship between them had fractured, and a complete impasse reached. To the extent that Mr Fallaize and those in a similar position would suffer economic harm in direct consequence of Defra’s decision, this was an uncovenanted result which as much flowed, in my view, from the intransigence of Guernsey’s position.

[97]Accordingly, I must reject Ms Demetriou’s irrationality challenge.

A1P1 OF THE CONVENTION

[98]As previously stated, this claim may only be advanced by Mr Fallaize. Guernsey is not a “victim” for HRA purposes, nor does it possess any A1P1 rights.

[99]Ms Demetriou’s clear and well-constructed submissions on this issue proceeded along the following logical pathway. Her starting point was that Mr Fallaize could bring himself within the scope of A1P1, in two relevant respects. First, his Guernsey licence, which was undoubtedly a “possession” for these purposes, has been rendered valueless by Defra’s decision because he is no longer able to transfer it, and/or its underlying “entitlements”, out of the Bailiwick. Secondly, his reciprocal licence, enabling him to land his catch at EU ports, is part of the bundle of rights which he acquired, albeit in stages; and it too cannot be transferred, because it has been rendered worthless.

[100]The next plank of Ms Demetriou’s case was that in both these foregoing respects there has been, at the very least, a control on the use of Mr Fallaize’s possessions within the meaning of A1P1(2), which required justification. It is no answer to this contention that there is a broad power to suspend or revoke these licences, because Defra’s actions still require to be justified. The correct analysis was to begin with Mr Fallaize’s licence (which was the relevant possession), not Defra’s power to revoke it. If a broad power to revoke were a complete answer to the A1P1 claim, it would effectively render this human right nugatory in many licence cases where the existence of such a power is commonplace.

[101]The final plank of Ms Demetriou’s case was that Defra are unable to justify their decision-making as being a proportionate means of achieving a legitimate aim, and/or as attaining a fair balance between private rights and the UK’s interests in this regard. She also contended that Defra failed to investigate the operation of alternative measures which would have been less intrusive.

[102]I will examine the authorities that Ms Demetriou relied on during the course of my analysis of her A1P1 case, and Mr Eadie’s submissions in answer to it.

[103]The first question is whether Mr Fallaize’s Bailiwick licence, and/or his reciprocal licence, alternatively any underlying “entitlements”, constitute “possessions” within the ambit of A1P1. In posing this first question, it seems to me that I should be formulating it, at least in the first instance, without reference to the power to revoke or suspend the licence. The existence of this power raises, to my mind, a further sub-issue which I can see is relevant to the question posed; but the analysis needs to proceed in stages. I note that in paragraph 96 of his judgment in R (oao Data Broadcasting International Ltd) v Office of Communications

[2010] EWHC 1243 (Admin)

, Cranston J conceptualised the revocation issue as being relevant to “interference” and not to “possession”, but in that case it was not in dispute that the licences in question fell within A1P1.

[104]Cranston J returned to the issue of “possession” in a context much closer to the present, in The UK Association of Fish Producer Organisations v Defra

[2013] EWHC 1959 (Admin)

, paragraphs 109-113. In that case, the issue was whether fixed quota allocations were possessions within the meaning of A1P1, and it was held that they were. In my view, if FQAs are possessions, the same must be true, with greater force, to the licences presently at issue.

[105]Cranston J referred to what he called “a seminal decision in the Strasbourg jurisprudence”, namely Tre Traktörer AB v Sweden [1989] 13 EHHR 309. In that case it was held that the withdrawal of a liquor licence had an adverse effect on the goodwill and value of a restaurant, and that the economic interests connected with the running of the restaurant were possessions within the meaning of A1P1. Having examined the facts of that case, it is clear to me that the licensing authority did not have a general power to revoke the liquor licence; it could only do so if the conditions of the licence were not being fulfilled, or if the holder was no longer a fit and proper person. Having said that, this authority is clearly relevant, and avails Mr Fallaize, in relation to the first phase of the analysis.

[106]Cranston J also referred to the decision of Mr Kenneth Parker QC in R (Nicholds) v Security Industry Authority

[2006] EWHC 1792 (Admin)

, where it was held that the test was whether licences or permissions have a monetary value and can be marketed for consideration, not whether they had a value to the holder because, without them, the licensable activity could not be performed. This decision was approved subsequently by the Court of Appeal and the House of Lords.

[107]Ms Demetriou also relied on the decision of the ECtHR in Centro Europa 7 Srl v Italy

[2012] 32 BHRC 417

, where it was held that a legitimate expectation of being allocated a broadcast frequency, linked to the property interest of a broadcasting licence, was a possession. However, introducing this authority at the current stage of the analysis was in danger of creating confusion. Assuming that I have correctly understood her point, Ms Demetriou was submitting that the reciprocal licence is analogous to the allocation of the broadcast frequency. However, Ms Demetriou does not need to rely on any legitimate expectation argument in relation to Mr Fallaize’s reciprocal licence, because he has held it for at least six years. If it is a possession at all, it currently enures to his benefit, and is not contingent or in futuro.

[108]I have already examined the available evidence and expressed my conclusions upon it. In my judgment, it makes no difference to the analysis whether the focus is on the underlying “entitlement” or on the licence. The same issues arise at all relevant stages. Mr Fallaize’s Bailiwick licence required an investment by him; it is marketable throughout the four administrations; it has an economic worth. The value may well be disputed, but it is clearly substantial, and I accept Mr Morris’ evidence on this issue. He clearly set out his store in his email to Defra dated 28th July 2015 (paragraph 61 above), and in my view he has not been effectively contradicted. Whether Mr Fallaize’s reciprocal licence should be envisaged as enhancing the value of his overall licence “package” is unclear on the evidence, and does not require judicial resolution. Nor, in my view, do I need decide whether, in the event of transfer of Mr Fallaize’s Bailiwick licence, the fact that the transferee could theoretically apply for a reciprocal licence, assuming that he might need one, is a relevant factor. Here, I would agree that the Centro Europa case is now more on point, but I do not understand Mr Fallaize to be saying in his evidence that it is the fact that the transferee could apply for a reciprocal licence which creates the real economic value. To my mind, the reciprocal licence is only relevant to the analysis to the extent that, without it, Mr Fallaize would lose his ability to land his catch in the EU. This, as I have said, is a material, albeit unquantified, benefit.

[109]Accordingly, I would hold that, subject to the further sub-issue which must be addressed, Mr Fallaize’s Bailiwick licence, including to the extent indicated his reciprocal licence, is a “possession” within the meaning of A1P1.

[110]Turning now to the further sub-issue, I should refer to an early decision of the European Commission of Human Rights in Gudmundsson v Iceland [1996] 21 EHHR CD89:

“As regards the question as to whether a licence to conduct certain economic activities could give the licence-holder a right which is protected under A1P1, the Commission considers that the answer will depend inter alia on the question whether the licence can be considered to create for the licence-holder a reasonable and legitimate expectation as to the lasting nature of the licence and as to the possibility to continue to draw benefits from the exercise of the licensed activity. Furthermore, the Commission notes that a licence is frequently granted on certain conditions and that the licence may be withdrawn if such conditions are no longer fulfilled. In other cases, the law itself specifies certain situations in which the licence may be withdrawn. It follows, in the Commission’s opinion, that a licence-holder cannot be considered to have a reasonable and legitimate expectation to continue his activities if the conditions attached to the licence are no longer fulfilled or if the licence is withdrawn in accordance with the provisions of the law which were in force when the licence was issued.”

[111]A good example of a case which applied this sort of reasoning is Data Broadcasting (loc.cit.), although Cranston J did so in the context of “interference”, not “possessions”/existence of right (see paragraph 96 of his judgment). In my view, this makes no difference inasmuch as the same reasoning could be applied at either stage. The point about that case, and Ms Demetriou relied on it heavily, was that it was clear from the licence conditions, the statute, and all the surrounding circumstances that at a certain point technological conditions would change, and that there would be a switch from analogue to digital frequencies. Accordingly, the claimants had no reasonable and legitimate expectation that their licences would subsist.

[112]Mr Eadie, relying essentially on the power under section 4(9) of the 1967 to revoke or suspend the reciprocal licence if considered to be necessary or expedient for the regulation of sea fishing, submitted that Mr Fallaize could have no reasonable or legitimate expectation that his licence would endure if the foundation on which the system was built, the FMA, has fundamentally broken down. When it became clearer in Ms Demetriou’s Reply that she was relying as much, if not more, on the suspension of clause 11 of the FMA, disabling Mr Fallaize from transferring his Bailiwick licence on the open market, Mr Eadie ran exactly the same point in relation to Defra’s powers under the FMA.

[113]I entirely agree with Mr Eadie that it makes no difference in analytical terms whether the focus is formally on s.4(9) of the 1967 Act or clause 11 of the FMA, because his submission is predicated on the proposition that, because the FMA has fundamentally broken down, Mr Fallaize has no expectation that it, and all that flows, should be perpetuated. I would also agree with Mr Eadie that, although the FMA has no express notice provision, Defra must have power to terminate or suspend – subject always, I would add, to any constraints applied by the rule of law.

[114]However, I entirely disagree with Mr Eadie that the existence of express or implied powers of this breadth can defeat Mr Fallaize’s reasonable and legitimate expectations. What he is really submitting is that Mr Fallaize can have no public law complaint if Defra reasonably believed that the FMA should be suspended in circumstances where a fundamental disagreement or impasse had arisen. That submission is relevant to the issues of infringement, justification and irrationality, but it has no bearing on the anterior question, currently under scrutiny, of whether Mr Fallaize’s A1P1 rights are defeasible, or simply do not arise, in circumstances where there is power to suspend the licence. Because that power is so broad, and there are no conditions in the licence or the statute which provide reliable signposts to or constraints upon its proper exercise, I would hold that Mr Fallaize does have a reasonable and legitimate expectation that his licence should continue; and that the burden must now fall on Defra to justify the interference.

[115]In her Skeleton Argument Ms Demetriou submitted that the suspension of the FMA amounted to a deprivation of his licence without compensation; or, alternatively, that it amounted to a control on use within the second paragraph of A1P1. In her oral argument Ms Demetriou placed much greater weight on the alternative submission, and in my judgment she was right to do so. It would be artificial, and incorrect, to separate out the reciprocal licence for these purposes. Defra’s suspension of the FMA restricted Mr Fallaize’s activities outside the 12 nm zone, and undermined the marketability of his Bailiwick licence, but overall we are in the realm of control, not deprivation.

[116]The final issue to be addressed under this rubric is whether, to use a shorthand phrase, Defra is able to justify the relevant infringement of Mr Fallaize’s A1P1 possessions.

[117]The locus classicus is now In re Medical Costs for Asbestos Diseases (Wales) Bill

[2015] AC 1016

. Paragraphs 45 and 52 of the judgment of Lord Mance JSC are particularly relevant:

“45. … There are four stages, which I can summarise as involving consideration of (i) whether there is a legitimate aim which could justify a restriction of the relevant protected right, (ii) whether the measure adopted is rationally connected to that aim, (iii) whether the aim could have been achieved by a less intrusive measure and (iv) whether, on a fair balance, the benefits of achieving the aim of the measure outweigh the disbenefits resulting from the restriction of the relevant protected right. 52. … The court will in this context weigh the benefits of the measure in terms of the aim being promoted against the disbenefits to other interests. Significant respect may be due to the legislature’s decision, as one aspect of the margin of appreciation, but the hurdle to intervention will not be expressed at the high level of ‘manifest unreasonableness’. In this connection, it is important that, at the fourth stage of the Convention analysis, all relevant interests fall to be weighed or balanced. That means not merely public, but also all relevant private interests. The court may be especially well placed itself to evaluate the latter interests, which may not always have been fully or appropriately taken into account by the primary decision-maker.”

[118]In this context, given the presence of intensely political, macro-economic, social and environmental considerations, the margin of appreciation (as it applies to Lord Mance’s first three stages) is wide: see paragraph 105 of The UK Association of Fish Producer Organisations (loc.cit.).

[119]At paragraphs 130 and 131 of my judgment in Drax Power Ltd v HMT

[2016] EWHC 228 (Admin)

, I accepted Mr Eadie’s submission in relation to Lord Mance’s item (iii): the issue is whether any less onerous or intrusive measure would equally well attain the stated objective.

[120]Save in one respect, the parties rehearsed arguments which were equally germane to the irrationality question. In her Reply, Ms Demetriou placed greater emphasis on Lord Mance’s fourth stage, and strongly submitted that the private interests of Guernsey fishermen have not been properly considered, and in particular, fairly balanced against the public interests invoked by Defra. In support of that submission, Ms Demetriou relied on paragraph 105 of Mr Gooding’s witness statement, which makes no reference to the impact of the suspension decision on the ability of Bailiwick licence-holders to transfer their “entitlements”/licences outside the Channel Islands, and on Defra’s response to Mr Morris’ email (see paragraph 61 above), from which the inference could fairly be drawn that this particular point had been overlooked.

[121]In my judgment, the majority of Ms Demetriou’s points under this umbrella must fail for the reasons I have already given (see paragraphs 92-95 above).

[122]I also do not agree that Defra has failed to investigate less intrusive measures. Both Messrs Gooding and Williamson have effectively rebutted the more recondite points about non-sector allocations and Producer Organisations, and I have already addressed those matters. Mr Gooding’s witness statement clearly sets out the breadth of Defra’s consideration, but the fact remains that a fundamental disagreement had arisen as to the meaning, purport and practical application of the FMA. Given this, and given the stance firmly taken by Guernsey throughout the various meetings and correspondence, it seems to me that Defra’s actions were proportionate.

[123]Lord Mance’s fourth criterion now requires consideration. It has two aspects. First, in relation to the suspension of the reciprocal licences, it is clear that Defra gave express consideration to the issue. That alone is far from being conclusive, but it is clear on the available evidence that the impact of suspending the reciprocal licences, seen in isolation, was not great. If the focus is on Mr Fallaize, he has suffered some disadvantage in not being able to land catches in France. If the focus is broader, the number of reciprocal licence holders is between 28 and 33; and although their individual circumstances will of course vary, I do not accept that the impact was (or would have been, had the suspension not been lifted) particularly significant. The saliency of impact must principally relate to EU landings in view of Mr Williamson’s evidence relating to fishing levels being unaffected. In my judgment, Defra has clearly struck a fair balance in relation to the suspension of the reciprocal licences.

[124]The second aspect of “fair balance” concerns the inability of Bailiwick licence holders to transfer their “entitlements”/licences on the open market, in view of the suspension of clause 11 of the FMA. I have hesitated over how I should approach Ms Demetriou’s late emphasis on this. It did not feature in the Claimants’ Grounds, and it is only touched on, in one sentence, in paragraph 58 of her Skeleton Argument. Before this hearing started, the submission had not been made expressly that Defra has failed to strike a fair balance between the public interest and the mercantile interests of the local fisherman, who would stand to lose substantial sums, effectively their livelihoods, if clause 11 of the FMA remained suspended.

[125]I propose to address the issue in this way. The Claimants have not properly foreshadowed the “fair balance” submission. Ms Demetriou stated that all the supporting evidence has been made available, which is correct, but Defra’s response to it might have been more focused if the case to be answered were properly pleaded. I cannot draw the irresistible inference from the Defra email, “OK – I see where you are coming from”, that the point was wholly overlooked, although I do accept that it might have been.

[126]However, even were I to give Ms Demetriou every possible latitude, I do not accept that the measures taken by Defra have failed to achieve a fair balance. Ultimately, it is for the court, and not for the decision-maker, to evaluate this issue. Defra was fully entitled to take into account, and clearly did take into account, the interests of fishermen throughout the four administrations. The concept of fair balance, in this context, entails the attainment of an equitable allocation of a scarce resource amongst all those seeking access to it. Further, the private rights of the Bailiwick fishermen must be balanced against the wider public interest of maintaining quotas, promoting sustainable development, and managing expectations. In my judgment, clause 11 of the FMA is a central provision, and it would have been anomalous, if not bizarre, to have suspended the remainder of the FMA but not that clause. If Defra had merely suspended the reciprocal licences, I imagine that Guernsey would have much less incentive to come to the negotiating table. My conclusion is that the decisions impugned do achieve a fair balance between private rights and the public interest.

[127]Ultimately, in my judgment, Mr Fallaize’s A1P1 claim succeeds on all technical aspects but fails at the last, and most important hurdle, the merits. I would hold that Defra have demonstrated to my satisfaction, in line with the criteria and principles explained by the Supreme Court, that the suspension of the FMA, and the concomitant decision by the MMO to suspend the individual licences, were justified.

CONCLUSION

[128]I have found for Guernsey and Mr Fallaize on the issue of justiciability, but have upheld Defra’s and the MMO’s case on the issues of irrationality and A1P1.

[129]This claim for judicial review must be dismissed. IN THE HIGH COURT OF JUSTICE Claim No. CO/5354/2015 QUEEN’S BENCH DIVISION ADMINISTRATIVE COURT BETWEEN: The QUEEN on the application of (1). STATES OF GUERNSEY (2). STEPHEN JOHN FALLAIZE Claimants - and - (1). SECRETARY OF STATE FOR THE ENVIRONMENT, FOOD AND RURAL AFFAIRS (2). THE MARINE MARITIME ORGANISATION Defendants ORDER UPON hearing counsel for the Claimants and the First and Second Defendants at a hearing on 11th and 12th July 2016 IT IS ORDERED THAT

Defendants

[1]The claim for judicial review is dismissed.

[2]The Claimants shall pay First and Second Defendants’ costs of defending the claim, to be subject to detailed assessment if not agreed.

[3]Permission to appeal is refused. OBSERVATIONS 137. I have hesitated over whether to grant permission under the second limb. Ultimately, I have concluded that the Court of Appeal should decide that. Dated: 22nd July 2016