The High Court has refused an appeal by eel fisherman James McArdle to annul two 2009 bye-laws that prohibited eel fishing and stopped regional boards issuing eel licences. The court found the measures were justified on the evidence before it and that McArdle had a reasonable opportunity to make representations. It also ruled that the Minister could not lawfully close the fishery permanently or indefinitely under the statutory power relied on.
Mr Justice Herbert delivered judgment on 6 March 2012. The case was brought under section 11(1)(d) of the Fisheries (Consolidation) Act 1959. The second named applicant, Patrick Slevin (Senior), took no part in the proceedings.
Bye-law CS 303/2009 prohibited taking, fishing for, possessing or selling European eel. It was due to expire on 30 June 2012. Bye-law 858/2009 barred regional boards from issuing eel fishing licences and had no fixed end date. The Minister said that the measures implemented Ireland’s Eel Management Plan, which was subject to review under an EU regulation.
McArdle argued that the combined effect was a permanent or indefinite closure, beyond the Minister’s powers. He also said the consultation was inadequate and a public inquiry should have been held, citing the impact on fishermen’s livelihoods and uncertainty in the scientific data. The Minister argued that fishermen had opportunities to contribute, including a public consultation, meetings and representation on the working group that prepared the plan.
The judge found that the consultation gave McArdle, both directly and through the Shannon Eel Fishermen’s Association, sufficient and reasonable opportunity to make representations. He said the law did not require a public inquiry in these circumstances. Although McArdle had not received copies of other submissions, the judge found he was not disadvantaged because association representatives participated in the working group.
The court concluded that the bye-laws, as interpreted, were not unreasonable, excessive or disproportionate in light of the scientific evidence and the serious decline in eel stocks. It rejected the challenge to their legality and refused the relief sought.
However, the judge held that section 9(1) did not empower the Minister to close an eel fishery permanently or indefinitely. The EU regulation did not itself require a complete cessation of fishing, and review provisions meant the open-ended licensing ban could not be treated as an immutable closure. The judge expressed no opinion on whether continued operation of bye-law 858/2009 might become ultra vires on the facts at a later date.