Blue Marine Foundation challenges UK Government on Overfishing

We are instructed by the marine conservation NGO, the Blue Marine Foundation, in its challenge to the Secretary of State’s (‘SoS’) determination of fishing levels for British fishing boats.  The challenge is to levels set by the Government that exceed independent scientific advice about what are economically and ecologically sustainable fishing levels.

Evidence provided in the claim demonstrated that the overfishing is leading not only to ecological harm but to collapse of employment in the UK fishing industry.  The claim raises points of principle about whether the Government must consider sustainability after negotiations with other international parties and about the standard of reasons and transparency which applies.

This is the first case considering the post-Brexit Fisheries Act 2020.

The decision under challenge relates to the December 2023 determination for the 2024 fishing year.  The claimant challenged the “section 23 determination” made under the 2020 Act, which essentially ‘mirrored’/transcribed the outcome of the negotiations with the EU and other coastal nations, resulting in fishing levels that exceeded independent scientific advice. The claimant’s claim raised issues relating to the duty of candour in judicial review and was initially brought without the benefit of only very limited publicly available information on how the negotiations, and ultimately, the UK’s determination was reached.  The claim was amended after further information was disclosed about the material that was before the Minister/SoS prior to, and post, the international negotiations. Ultimately it became clear that, despite the UK entering international negotiations with the goal of seeking levels which would have meant a higher number of fish stocks met scientific advice in 2024, the output of the international negotiations resulted in a regression such that 54% of stocks ultimately were set in exceedance of scientific advice. The claim raises issues about whether the negotiated levels can be ‘slavishly’ transcribed into the statutory determination made by the SoS.  The claim alleges that the decision to follow the negotiated outcomes without further consideration at the section 23 stage unlawfully fetters the discretion of the minister and, in the absence of cogent reasons, runs contrary to scientific advice and is not based on a domestic assessment of sustainability as required by law and policy.

As a coastal state, the UK is subject to international conventions, including the UN’s Convention on the Law of the Sea (‘UNCLOS’) that oblige states to manage the living resources in their Exclusive Economic Zone in a sustainable manner. They are also obliged to co-operate with other coastal states on fish stocks that occur jointly across shared waters to maintain and restore stocks. This is achieved through international consultations and negotiations underpinned by international agreements.

Since Brexit, the UK has participated on its own behalf in negotiations with the EU (on a bilateral basis), Norway-EU-UK (on a trilateral basis) and coastal states (UK, EU, Iceland, Faroe Islands, Greenland & Norway). These negotiations are informed by independent scientific advice from the International Council for the Exploration of the Seas (ICES) which advise on the sustainability of fished stocks to ensure that yields can be optimised but also ensure that the stocks are sustained. The output of the negotiations is the ‘Total Allowable Catch’ (‘TAC’) for the fishing year which is then apportioned to each national authority.

The national legislation in place since Brexit is the ‘Fisheries Act 2020’ which includes the requirement for fishing authorities, including the Secretary of State (‘SoS’) to act accordance with policies of the Joint Fisheries Statement underpinned by the Fisheries Objectives and the need for transparency. The Fisheries Act includes the statutory mechanism at section 23, by which, following the culmination of the international negotiations, the SoS ‘determines’ the maximum quantity of sea fish that might be caught by British fishing boats, which are then apportioned to the devolved nations and ultimately allocated to the UK’s fishing fleet.

High Court Claim:

Permission was initially granted on two grounds of challenge.  As above, the claimant amended its grounds of claim after disclosure by the Defendant, adding a further ground relating to the fettering of discretion. On 5 March 2025 the claim was heard by Mrs Justice Lang. Ultimately, the Judge dismissed the claim, finding that (1) the SoS had lawfully delegated responsibility to the minister; (2) the levels would normally follow the negotiated outcomes and there was no requirement therefore to give further consideration at the section 23 stage; (3) there was sufficient evidence that scientific evidence was considered at the earlier stage and; (4) that in consideration of the application of policy, the decision maker should be afforded a wide margin of discretion.

Appeal:

Permission to Appeal has been sought and we are currently awaiting the outcome.  The appeal alleges four separate errors in the Judge’s consideration of the claim.  In summary, these are that:

• The Judge essentially accepted that the SoS could lawfully transcribe the negotiated outcomes in making the section 23 determination which is a misinterpretation of the statutory framework
• Alternatively, in any event, there was no evidence that the necessary factors had been considered at the negotiation stage (in particular where the negotiated outcomes had in fact involved departure from scientific advice for many more fish stocks than the UK negotiating position had sought); and there was nothing to show that the specific JFS policies had been directly considered by the Minister or SoS.
• The Judge wrongly relied on meetings the Minister had with civil servants where there was no evidence of the content of those meetings before the Court; and
• The Judge had erred in holding that the Secretary of State had acted in accordance with the JFS obligation of transparent decision-making in circumstances where no reasons for departing from scientific advice were made publicly available for most stocks for which there was a departure.

Toby Fisher and David Wolfe KC of Matrix Chambers are instructed in the Court of Appeal.

A 3 minute campaign video by Blue Marine Foundation/Big Wave can be found here: – https://www.bluemarinefoundation.com/2025/03/05/blue-marine-to-challenge-overfishing-in-the-high-court/