over-18m fishing vessels unconstitutional

High Court application successful on sole ground that Minister’s exclusion order failed to comply with the consultation process which was laid out

The judgement in the case of Tom Kennedy and Neil Minihane versus the Minister for Agriculture, Food and the Marine has been published in full. 

The judgment which was delivered by Mr Justice Michael MacGrath on 31 July, 2020, led to a directive which created an exclusion zone for fishing vessels over 18 metres in length being quashed by the High Court. 

Mr Justice MacGrath ruled that the applicants were successful on sole ground that the respondents failed to comply with the consultation process which was laid out.

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Policy Directive 1 of 2019 was signed into effect on 09 March 2019  by then Minister for Agriculture, Food and the Marine, Michael Creed TD, after a public consultation.

This Policy Directive had the effect of excluding fishing vessels exceeding 18m in overall length 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 01 January, 2020.

In May 2019, fishing company directors, Tom Kennedy and Neil Minihane were given leave to apply for judicial review of the Policy, where they contended the Minister has exceeded his powers in making the directive.

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.

Amongst the submissions made to the High Court, the applicants contended the Policy Directive was ultra vires the Act of 2003. It imposes a blanket exclusion on boats over 18m from trawling within the 6nm zone and is beyond the scope of the respondent’s powers. 

They contended that the measure has nothing to do with “protecting, conserving or allowing the sustainable exploitation of living marine and aquatic species or the rational management of fisheries” but is concerned with the redistribution of resources from larger to smaller vessels, and therefore was beyond the scope of S. 3(2) of the Act of 2003 insofar as it has been adopted in violation of the requirements of the CFP Regulations.

The applicants had also contended that the Policy Directive was adopted in a manner which was not consistent with their constitutional rights to a fair hearing and they contended it was made “in breach of the principles of natural justice”.

In his judgement Mr Justice Michael MacGrath said he was satisfied that the Policy Directive has “impacted on the interests of a defined and narrow class and number of fishermen”.

He said “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. The consultation document committed the respondent to undertake a comprehensive examination and review of access to waters inside the 6nm zone and to engage further with affected stakeholders prior to making any decision on implementing any policy change. This was not done despite the fact that the respondent’s Department was aware that two of the vessels in particular would be significantly compromised if the respondent excluded all vessels over 18m from the 6nm zone.”

Mr Justice MacGrath went on to say “The respondent (Michael Creed) refused to meet with the applicants and proceeded to issue the directive without publishing a detailed evaluation and/or allowing submissions to be made, all of which is contrary to basic principles of fair procedures.”

He also said “ 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.”

On the High Courts decision to quash the Policy Directive, John Ward from the Irish Fish Producers Organisation said “This was an ill thought out piece of legalisation from our marine department without any consultation with the fishing Industry which is unfortunately symptomatic of Mr Creed’s tenure. It could have led to a major tragedy and we are delighted the Courts seen through it.”

The full judgement can be found here.

Brian J McMullin Solicitors
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