Sustainable fishing: Landmark legal victory means Scottish Government must abide by its own laws on protecting the marine environment – Phil Taylor, Open Seas

Ministers should no longer license fishing activities that are driving the loss of important marine habitats

It's been an embarrassing few weeks for the Scottish ministers responsible for our seas and biodiversity. Firstly, having been found to be acting unlawfully by neglecting their own National Marine Plan, and latterly having to U-turn on their proposals for highly protected marine areas (HPMAs).

All against a backdrop of ongoing failed commitments and missed deadlines, which sees members of the community of Papay at the north end of Orkney again shouting into an apathetic governmental void about the destruction being caused to a marine protected area (MPA) by nomadic scallop dredgers from the opposite side of the country.

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But we didn’t take legal action against the government to cause embarrassment; we are optimistic it will drive change for our environment and all of us dependent on it.

Our challenge was simple. In 2010, the Scottish Parliament passed the Marine Scotland Act, designed to protect and recover the health of the sea and which foresaw concerns about busier seas. That law required the government to produce a “national marine plan” (similar to the government’s master plan for land development) setting out goals and constraints on human activity and guiding what should happen where.

The law states that decisions made about the sea must be made “in accordance” with the plan. And throughout the past eight years, it has been used to guide decisions about most industries in the sea but, for some reason, not fishing. This is important, given that the plan sets out an entire section of objectives and policies for sea fishing – many of which, such as the objective to adhere to a ban on discarding unwanted fish, have been ignored – as well as rules to “live within environmental limits”.

The plan provides a framework for how we derive the most benefit from our largest public commons, the sea. The environmental limits are extremely important; we need to understand how to rebalance our relationship with the seas which have, for so long, been out of kilter. Most notably, from our viewpoint, because of the impact of unregulated scallop dredging.

This involves towing heavy metal rakes through the seafloor in pursuit of hors d'oeuvres for the restaurant trade and it destroys marine life in its path. It grew as an industry in the 1980s and, during that time, rubblised and swept away much of the life from Scotland’s inshore seafloors.

Rare habitats such as flame shell beds (a mollusc which builds nests that can carpet the seafloor), maerl (a seaweed that looks like coral), vast fields of sea sponges, and even just gravely seafloors filled with various bits of life were made rarer, left only in the corners of Scotland’s seas unexplored by dredging. The National Marine Plan states that the seas as a whole should be protected and restored, but also, very specifically, that no harm should come to the national status of these habitats and other species.

Since 2017, we at Open Seas have regularly been collating and publishing evidence showing such harm continues, whether in marine protected areas such as Rum last year or recently in Papay, or in places slated for protection in 2018 but not yet given it, such as Handa Sound.

For the past four years, we have been asking ministers and civil servants at Marine Scotland how they can claim this to be “in accordance with” the plan, in correspondence and meetings, providing evidence and suggesting approaches to address the problem. Sadly, the issue persists, so we took legal action.

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Scottish ministers sent a team of 14 to court to argue their case, but spent much of their time arguing that “in accordance with” meant something else and openly admitted that “no regard was had to the marine plan when making this decision” on fisheries’ licensing. This was a massive admission and points to a deep flaw in the way that decisions about fishing have been made, especially in relation to potentially damaging methods such as bottom-trawling and dredging.

The judge was dismissive of Marine Scotland's argument, ruling that since the government “admittedly did not consider the plan or its policies in taking the decision” this was sufficient to find in Open Seas’ favour. He rejected Marine Scotland’s arguments that decisions made with industry support should be treated differently, and that it would be too difficult to act in accordance with the plan. He recognised Marine Scotland does also care deeply about the environment but, regarding their proposals for enhanced protection in future (promised in 2017, but still not yet delivered), he stated that “with the best will in the world, it could not be described as quick”.

So what now? The judge’s opinion is clear: fishing decisions need to be taken in accordance with the marine plan. This should mean our fisheries are managed in a way that stays within environmental limits. An immediate response must be to halt marine habitat loss by no longer licensing activities which are driving that decline.

Longer term, there is a need for more fundamental reform to deliver a comprehensive spatial plan for fishing. There are ways Scottish ministers could try to hide from these consequences, the law even provides some. But given the judgment found evidence of environmental loss so compelling – and given recent ministerial statements, such as Cabinet Secretary Mairi McAllan's description of the marine plan as “setting a clear framework for the use of our seas” – it’s difficult to see how these duties could be avoided without further political and public embarrassment. Or worse, setting a precedent which effectively allows all industries to exceed environmental limits.

Our seas belong to us all, they should be protected, restored and used to bring benefits to the whole of society. We rely on ministerial decisions to make that happen and those decisions must be based on a sensible plan. We hope our win in court means this will now start happening.

Phil Taylor is director of marine sustainability charity Open Seas

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