The Court of Appeal has quashed in its entirety a 2019 fisheries policy directive issued by the Minister for Agriculture, Food and the Marine, ruling that a required consultation process had not been followed before the directive took effect.
The judgment, delivered by Mr Justice Murray on 10 March 2023, follows the court’s principal judgment in the appeal. In that earlier ruling, the court rejected all but one of the applicants’ grounds of challenge. It found that Article 20 of EU Regulation 1380/2013 required notification and consultation in circumstances where conservation measures could affect other member states’ fishing vessels, and that the Minister had failed to comply with that requirement.
The court then invited submissions on whether the directive could be kept in force for Irish vessels while set aside for Northern Irish vessels, and on what relief remained appropriate after the United Kingdom left the European Union. After considering the parties’ submissions, the appeal court decided not to sever the directive.
It said the consultation obligation applied before the directive commenced on 1 January 2020, and that non-compliance meant the directive as a whole had no legal effect. The consultation might have led to a different measure or no measure at all, the court said, so the failure was not merely technical.
The court also considered the Trade and Cooperation Agreement between the EU and the UK. It recorded the Minister’s acceptance that measures affecting Northern Irish vessels would have to be notified to the UK before application, allowing time for observations or requests for clarification. The court said relief would therefore not be futile: the Minister would have to complete the agreement’s consultation procedure before reintroducing such a measure.
Although a separate legal instrument had extended the policy to Northern Irish vessels, the court concluded that removing that extension alone would disrupt the statutory scheme governing access to the six-nautical-mile zone. It therefore ordered certiorari quashing the directive in full.
On costs, the court’s view was provisional. It proposed that the applicants receive their appeal costs in full, while noting they had succeeded on only a narrow ground and lost on the other challenges. For the High Court case, it proposed that they receive one third of their costs because most of the hearing concerned grounds on which they lost. The court said it would hold a short hearing if either party wished to argue against that proposal. The two other judges agreed with the judgment and proposed orders.