Kennedy v The Minister for Agriculture, Food and the Marine

• Jurisdiction: Ireland
• Judge: Mr. Justice Michael MacGrath
• Judgment Date: 31 July 2020
• Neutral Citation: [2020] IEHC 497
• Docket Number: [2019 No. 316 JR]
• Court: High Court
• Date: 31 July 2020

BETWEEN

TOM KENNEDY

AND

NEIL MINIHANE

APPLICANTS

AND

THE MINISTER FOR AGRICULTURE, FOOD AND THE MARINE

RESPONDENT

[2020] IEHC 497

Michael MacGrath J.

[2019 No. 316 JR]

THE HIGH COURT

JUDICIAL REVIEW

Policy Directive – Fisheries (Amendment) Act 2003 – Consultation process – Applicants challenging Policy Directive 1 of 2019 made and published by the respondent – Whether the respondent failed to comply with the consultation process which was laid out

Facts: The applicants, Mr Kennedy and Mr Minihane, challenged Policy Directive 1 of 2019 made and published by the respondent, the Minister for Agriculture, Food and the Marine, on 5th March, 2019 pursuant to powers conferred on him by the Fisheries (Amendment) Act 2003 as amended. The following were the principal grounds of challenge as outlined in the statement of grounds and as averred to in the affidavits of the applicants: (i) the Policy Directive is ultra vires the 2003 Act; (ii) the Policy Directive was adopted in a manner which was not consistent with the applicants’ constitutional rights to a fair hearing and is in breach of the principles of natural justice; (iii) given that the Policy Directive impacts in such a drastic way on the constitutional rights of the applicants, there was an obligation on the respondent to provide reasons for his decision and the respondent failed to provide adequate reasons; (iv) the Policy Directive constitutes a disproportionate interference with the applicants’ rights as protected by the Constitution, the European Convention on Human Rights and the Charter of Fundamental Rights of the EU inter alia, because it encroaches substantially on their property rights without the payment of compensation; and (v) as the Policy Directive has the potential to affect vessels from another member State it breaches the requirements of EU law.

Held by the High Court (MacGrath J) that the respondent failed to comply with the consultation process which was laid out.

MacGrath J held that the applicants were entitled to succeed on that ground.

Applicants successful.

JUDGMENT of Mr. Justice Michael MacGrath delivered on the 31st day of July, 2020.

Introduction

1 The applicants, Mr. Kennedy and Mr. Minihane, or companies with which they are associated, are holders of commercial sea fishing boat licences in respect of certain trawlers which they operate. This case concerns a challenge by the applicants to Policy Directive 1 of 2019 (” the Directive“) made and published by the respondent on 5th March, 2019 pursuant to powers conferred on him by the Fisheries (Amendment) Act 2003 (” the Act of 2003“) as amended. This Policy Directive has the effect of excluding fishing vessels exceeding 18m in overall length (” OAL“) from operating trawl or seine nets inside a 6nm zone, including inside the baselines, subject to a phasing out of sprat fishing over a two year period from 1st January, 2020.

2 The applicants have been fishing for over 30 years from their respective bases in the South West of Ireland. Mr. Kennedy operates from Dingle, Co. Kerry, Mr. Minihane from Castletownbere, Co. Cork. The respondent acknowledges their contribution to society and that they are hard-working, decent and professional fishermen. The applicants' vessels, “The Celtic Quest”, “The Fiona KIII” and the “Ocean Venture II” exceed this length and by virtue of the policy directive are, and will be, excluded from fishing in the six nautical mile (“6nm”) zone, including the baselines. It should be said that Mr. Minihane and Mr. Kennedy do not own these vessels. They are owned by, and are licenced in the name of, limited or unlimited companies of which the applicants and directors and shareholders.

3 Geographical fishing limits, or zones, which are measured in nautical miles (” nm“), are dictated by national and EU law. Sea boat fishing licences are issued in respect of different types of vessels. Generally speaking the size of the vessel and its country of origin determine where it can fish. The nautical mile limit applicable in this case is measured from what is known as the baseline. The baseline is the low water line along the coast as marked on officially recognised charts. Where there are deep indents in the coastline, baselines tend to be drawn in straight lines from headland to headland. There is a specific statutory instrument dealing with this: The Maritime Jurisdiction (Straight Baselines) Order 2016. The distance between the baseline and shore, therefore, may vary significantly depending on the part of the country's coastline from which it is measured. Given the nature of the more rugged and indented coast on the west of Ireland, the baseline on the west coast is further away than that to the east. Thus, from certain ports, particularly in the west, a sea fishing boat may be required to travel up to 50km to exit the 6nm zone if its licence excludes permission to fish within that zone.

4 The sea boat fishing licences issued in respect of the applicants' vessels entitle them to operate multipurpose vessels, known as polyvalent vessels, which are licensed to fish in the polyvalent segment which includes, white fish, shellfish and pelagic fish. Of the pelagic species, the applicants mainly target herring, sprat and horse mackerel.

5 The licence in respect of the Celtic Quest was issued to Dingle Fishing, a private company limited by shares of which Mr. Kennedy and Mr. Minihane are directors. The licence for the Fiona KIII was issued to Tom Kennedy Fishing which is an unlimited company of which Mr. Kennedy is a director and shareholder. This vessel was commissioned in 2016 and built in 2018 at a cost of approximately €5.5 million. The licence in respect of the Ocean Venture II issued to Ocean Venture II Fishing Ltd. of which Mr. Minihane is a director. These vessels are referred to as “the applicants' vessels” in this judgment, partly for convenience and partly because they are so described in the statement of grounds. Mr. Kennedy also owns the Atlantic Fisher which is 23m in length and is stated not to be involved in proceedings. It fishes exclusively outside the 6nm limit, mainly for white fish using gill nets which are not permitted within the 6nm zone for any size boat.

6 Over the years the applicants have developed a particular style of fishing. For nine months of the year they trawl for fish outside of the 6nm zone and for the other three months, in respect of two of their vessels, within that zone. The Celtic Quest spends nine months of the year at sea with the Fiona KIII and for three months they trawl in tandem within the 6nm limit. In October, November and December, when within the 6nm zone, they fish for herring, bull mackerel and sprat. Herring and bull mackerel are subject to quotas which are determined at European Union level. Sprat is not subject to a quota.

7 Pursuant to the provisions of the Act of 2003 the licensing authority for sea fishing boats is the Registrar General of Fishing Boats ( “the Registrar General”). He/she is independent of the respondent in the exercise of his/her functions. The respondent is precluded by statute from involvement in the licensing of such vessels, however, he sets policy and is empowered to issue policy directives by s. 3 of the Act of 2003 as amended by the Sea Fisheries and Maritime Jurisdiction Act 2006, s. 99(3). The Registrar General of Fishing Boats is obliged to comply with any such Policy Directive and this is practically achieved by the attaching of conditions to any licence issued in respect of a sea fishing boat. In Faherty v. The Registrar General of Fishing Boats [2010] IEHC 244, Charleton J. held that Policy Directives have similar status to statutory instruments.

8 Ms. Josephine Kelly, of the respondent's department, in an affidavit sworn in these proceedings on 21st November, 2019 provides context for the regulatory regime which applies to fishing in sea waters around the State from both a national and EU perspective. She is the head of the Sea Fisheries Policy and Management Division of the respondent's Department which has responsibility for the strategic, economic and sustainable development of the seafood sector within the framework of the Common Fisheries Policy (“ CFP”). The CFP provides a framework for the long-term conservation of fish stocks and the sustainability of fishing in EU waters and makes provision, inter alia, for access by member state fleets to EU waters, subject to CFP policy rules. Regulation 1380/2013 of the CFP provides for general rules on access to waters, article 5 of which makes provision for a limitation on access within 12 nm zones from baselines of member states, by restricting fishing to those member states' fleets that had traditionally fished in those waters. Member states are permitted to introduce national measures to promote conservation of fish stocks and the marine ecosystem within the 12nm zone. These measures must be non-discriminatory.

9 The Policy Directive came into force on 1st January, 2020 and was issued following a public consultation process which was launched on 29th April, 2018 by the publication of a consultation document by the respondent entitled “Public Consultation on a Review of Trawling Activity inside the 6 Nautical Mile Zone” (hereafter referred to as “the Consultation document”). Prior to the adoption of the Policy Directive, licencing of vessels under 27.43m OAL within the 6nm zone was subject to limited restrictions, localised in some cases in relation to the type of fish to be targeted and the type of fishing gear to be used. Longer vessels were generally restricted from entering the 6nm zone.

The Fleet

10 Commercial fishing vessels in the Irish fleet vary in size from 5m to over 65m. They use different types of fishing gear depending on the type of fish they target. It is recognised that larger vessels usually access fish stocks anywhere in Irish coastal waters or...