Kennedy v The Minister of Agriculture, Food and the Marine

• Jurisdiction: Ireland
• Judge: Mr. Justice Murray
• Judgment Date: 19 July 2022
• Neutral Citation: [2022] IECA 165
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record No. 2020/232

Between

Tom Kennedy and Neil Minihane

Applicants/Respondents

and

The Minister for Agriculture, Food and The Marine

Respondent/Appellant

[2022] IECA 165

Murray J.

Donnelly J.

Ní Raifeartaigh J.

Court of Appeal Record No. 2020/232

High Court Record No. 2019/316 JR

THE COURT OF APPEAL

CIVIL

Policy directive – Validity – Common Fisheries Regulation 1380/2013 – Respondents seeking orders of certiorari quashing a policy directive – Whether the policy directive was made in breach of fair procedures

Facts: The appellant, the Minister of Agriculture, Food and the Marine, on 5 March 2019, issued Policy Directive 1 of 2019 (the Policy Directive), providing that from 1 January 2020, sea-fishing boat licences issued to vessels over 18 metres length overall were precluded from operating trawl or seine nets inside the 6-milenautical zone, including inside what were described as ‘the baselines’. The respondents, Mr Kennedy and Mr Minihane, through companies in which they were interested, engaged in trawl fishing within that area using vessels that were in excess of that length. They challenged the validity of the Policy Directive, seeking orders of certiorari quashing the Policy Directive, and various ancillary declaratory reliefs. They argued that: (i) the Policy Directive was inconsistent with the Common Fisheries Regulation 1380/2013 (the Regulation); (ii) the Policy Directive was outside the scope of the powers conferred by s. 3(3) of the Fisheries (Amendment) Act 2003 because it was directed at the redistribution of fishing resources amongst fishermen, this being a purpose that was not permitted by s. 3(3); (iii) the Minister did not provide adequate reasons for his decision to issue the Policy Directive; (iv) the Policy Directive was irrational and/or amounted to a disproportionate interference with the applicant’s property rights and their right to carry on a business; and (v) the Policy Directive was made in breach of fair procedures. The High Court (MacGrath J) granted a declaration that the Policy Directive was void and of no effect for the fifth of those reasons ([2020] IEHC 497). MacGrath J rejected the other four arguments. The Minister appealed that decision. The applicants cross-appealed the decision.

Held by the Court of Appeal (Murray J) that: (i) the Policy Directive was a measure for the conservation of fish stocks within the meaning of Article 19 of the Regulation; (ii) the failure to notify the measure pursuant to that provision at the time when it applied only to Irish sea-fishing vessels had no effect on its validity; (iii) it followed from (i) that the Policy Directive was also a measure for the conservation and management of fish stocks within the meaning of Article 20(1) of the Regulation; (iv) the Policy Directive as amended by the Sea-Fisheries (Amendment) Act 2019 was a measure which, as of the enactment of that Act, applied to vessels of another member state and that this consequence followed from two legal instruments rather than one could not affect the obligation of notification imposed by Article 20(2); (v) the Policy Directive should therefore have been notified in accordance with Article 20(2), certainly before it came into force in January 2020; (vi) the Policy Directive was not discriminatory; (vii) the Policy Directive was intra vires s. 3(3) of the 2003 Act even though it was adopted in part in order to benefit those fishing using smaller vessels and coastal communities; (viii) the Policy Directive had not been shown to be irrational, and it was not invalid as involving a disproportionate interference with the applicants’ constitutional rights; (ix) the reasons given for the measure were legally adequate; and (x) a reasonable reader construing the consultation paper would not have concluded that the applicants enjoyed any right to a second consultation before the Policy Directive was adopted.

Murray J held that the court would receive submissions from the parties as to whether that part of the Policy Directive affecting Northern Irish vessels was severable, and if so, how, insofar as it ought to have been notified under Article 20(2) of the Regulation and the relief, if any, to be granted having regard to the prospect of such severance and/or the fact that there was, by reason of the departure of the United Kingdom from the European Union, no requirement that the Policy Directive be notified in accordance with Article 20(2) of the Regulation.

Appeal allowed.

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Murray delivered on the 19th of July 2022

Contents

The issues	3
The background
(a) The applicants	4
(b) The consultation process	6
(c) The decision	9
Issue One: The Common Fisheries Policy
(a) The argument	11
(b) The trial judge's assessment	14
(c) Articles 19 and 20	16
(i) Application of Article 19	18
(ii) Effect of notification obligation in Article 19	24
(iii) Application of Article 20	25
(iv) Northern Ireland vessels	26
(v) Effect of non-compliance with Article 20	28
Issue Two: Section 3(3)
(a) The argument	30
(b) The trial judge's assessment	31
(c) Analysis	32
Issue Three: Reasons
(a) The argument	37
(b) The trial judge's assessment	37
(c) Analysis	38
Issue Four: Disproportionate interference with the applicants' rights
(a) The argument	40
(b) The trial judge's conclusions	45
(c) Analysis	46
Issue Five: Consultation rights
(a) The findings of the trial judge	50
(b) Analysis	53
Conclusion	58

The issues

1 . Section 222B of the Fisheries (Consolidation) Act 1959 applies to certain ‘ sea-fishing boats’. It prohibits the use of such a vessel for sea-fishing – whether within the exclusive fishery limits of the State or otherwise — save in accordance with a licence granted in relation to the boat in question. A person who uses a sea-fishing boat in contravention of this prohibition is guilty of an offence. The licencing authority is the Registrar General of Fishing Boats (or, acting under his or her superintendence, their Deputy). Licences may be granted for such period as he or she deems appropriate. In practice, they are generally granted for a period of one year and must be renewed annually.

2 . Section 3(3) of the Fisheries (Amendment) 2003 Act (‘the 2003 Act’) 1 enables the respondent Minister (‘the Minister’) to issue policy directives requiring certain prohibitions or conditions to be imposed on sea-fishing boat licences. That power may be exercised inter alia for the purpose of protecting, conserving or allowing the sustainable exploitation of living marine aquatic species or the rational management of fisheries

3 . On 5 March 2019 the Minister issued such a policy directive. It was styled Policy Directive 1 of 2019 (‘the Policy Directive’). This provided that from 1 January 2020, sea-fishing boat licences issued to vessels over 18 metres length overall (‘LOA’) were precluded from operating trawl or seine nets inside the 6-mile nautical zone 2, including inside what are described as ‘ the baselines’. The applicants — through companies in which they are interested – engage in trawl fishing within this area using vessels that are in excess of this length. In these proceedings they challenge the validity of the Policy Directive, seeking orders of certiorari quashing the Policy Directive, and various ancillary declaratory reliefs.

4 . Insofar as relevant to this appeal, they argued as follows:

• (i) That the Policy Directive is inconsistent with the Common Fisheries Regulation 1380/2013 (‘the Regulation’).

• (ii) That the Policy Directive was outside the scope of the powers conferred by s. 3(3) of the 2003 Act because it was directed at the redistribution of fishing resources amongst fishermen this being (the applicants said) a purpose that was not permitted by s. 3(3).

• (iii) That the Minister did not provide adequate reasons for his decision to issue the Policy Directive.

• (iv) That the Policy Directive was irrational and/or amounted to a disproportionate interference with the applicant's property rights and their right to carry on a business.

• (v) That the Policy Directive was made in breach of fair procedures. 3

5 . For reasons explained in a detailed judgment ( [2020] IEHC 497), MacGrath J. granted a declaration that the Policy Directive was void and of no effect for the fifth of these reasons. The Minister has appealed that decision. MacGrath J. rejected the other four arguments. The applicants have cross-appealed that decision. In this judgment I explain why I have concluded that the trial judge was correct in his resolution of the second, third and fourth issues, and why he erred in his determination of the first and fifth.

The background

(a) The applicants

6 . Each of the applicants has been involved in the fishing industry for over thirty years. Mr. Kennedy fishes from Dingle and Mr. Minihane from Castletownbere. A company (Dingle Fishing Ltd.) of which both are shareholders and directors owns ‘ The Celtic Quest’ while a second vessel, ‘ The Fiona K III’, is owned by Tom Kennedy Fishing. This is an unlimited company of which Mr. Kennedy is a director and in which he is a shareholder. Ocean Venture II Fishing – of which Mr. Minihane is a director – is the owner of ‘ The Ocean Venture II’ a third vessel which is said to be affected by the Policy Directive. 4 Each of these vessels is in excess of 18 metres in length, 5 and would – if the Policy Directive is lawful and its terms are adopted in the sea-fishing licences issued in respect of them – be precluded from operating trawl or seine nets inside the 6 nautical...