The High Court has rejected a judicial review challenge by Irish mussel industry participants who argued that Northern Ireland vessels were fishing for mussel seed in Irish waters without lawful authority. Mr Justice Birmingham delivered the judgment on 28 October 2014.
The plaintiffs included individuals and companies that owned licensed Irish mussel vessels. They said that fishing by Northern Ireland boats contributed to overfishing and mismanagement, reducing mussel seed stocks and harming their industry. They argued that the Constitution and the Sea Fisheries and Maritime Jurisdiction Act 2006 required an express legal basis for the fishing.
The court considered letters exchanged by officials in 1964 and 1965, which referred to continuing existing arrangements for reciprocal fishing. The plaintiffs argued that the correspondence did not create a legally effective arrangement and, alternatively, did not cover the fishing being carried out, including by vessels over 75 feet long.
The judge rejected the constitutional arguments. He was doubtful that wild mussel seed was State property within Article 10 of the Constitution and said that permitting fishing did not amount to alienating State property. He also rejected the argument that the constitutional order required a different form of legal authorisation, concluding that the arrangement fell within a category of technical or administrative international agreement that did not need Dáil approval or to be laid before it.
On the statutory challenge, the court read sections 8 and 10 of the 2006 Act together. Section 10 makes fishing by a foreign sea-fishing boat unlawful unless authorised by law. The judge held that section 8 recognised entry for a purpose authorised by an arrangement between the State and the country to which the boat belongs, and that fishing was such a purpose under the Voisinage arrangement.
The judge also rejected the plaintiffs’ alternative arguments about reciprocity, residence, vessel length and habitual fishing. He found that the arrangement covered fishing generally rather than particular species or fishing methods, and that it was flexible enough to accommodate changes in the structure of the industry and the rules governing Irish vessels.
The court concluded that Northern Ireland vessels’ fishing was authorised under the arrangement and dismissed the plaintiffs’ claim. The judgment did not determine the separate legitimate expectation issue, which the parties had agreed would be considered in the related Barlow 1 proceedings. The judge said any change to the long-standing arrangement was for the executive or legislature.