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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Quark Fishing Ltd., R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs [2001] EWHC Admin 1174 (5 December 2001) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/1174.html Cite as: [2001] EWHC Admin 1174

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		Wednesday, 5th December 2001

Wednesday, 5th December 2001

MR JUSTICE SCOTT BAKER:

INTRODUCTION

1. This case is about a licence to fish for Patagonian Toothfish (Dissostichus Eleginoides) in the territorial waters of South Georgia and the South Sandwich Islands (SGSSI). Such a licence is a very valuable asset. The Claimant hoped for and expected a licence for 400 tonnes for its vessel Jacqueline for the 2001 season. Toothfish is said to sell for around US$9,000 per tonne on the quay (a sterling equivalent of about £2.5m for 400 tonnes). The cost of a 400 tonne licence is just under £223,000. The Claimant was refused a licence following a direction given by the Secretary of State for Foreign and Commonwealth Affairs (the Defendant in these proceedings) on 7th June 2001.

BACKGROUND

2. Fishing in SGSSI waters is regulated pursuant to the Convention on the Conservation of Antarctic Marine Living Resources ("CCAMLR") to which the United Kingdom is a signatory. Annual total allowable catches ("TACs") are set by the CCAMLR Commission for each of the CCAMLR designated blocks of ocean. The SGSSI are in sub-areas 48.3 and 48.4. TACs are concerned with the limitation of fishing activity for specific species in specific areas. They are not concerned with the identity or nationality of vessels fishing for the TAC. TACs are based on scientific recommendations produced by CCAMLR's scientific committee and are not subject to political negotiations.
3. All the coastal state countries that are signatories to CCAMLR operate 200 mile exclusive economic zones (EEZs) or maritime zones (which for present purposes makes no difference). The relevant zone in this case is that operated by the United Kingdom in relation to SGSSI. EEZs are governed as to public international law by the United Nations Convention on the Law of the Sea. Article 62(1) of the Convention provides that the coastal state shall promote the objective of optimum utilisation of the living resources in the EEZ. Article 62(2) provides that the coastal state shall determine its capacity to harvest the living resources of the EEZ. Where the state does not have the capacity to harvest the entire allowable catch, it shall give other states access to the surplus. In doing so, the state is obliged under Article 62(3) to take into account all relevant factors. These include (i) the significance of the living resources of the area to the economy of the state concerned, and its other national interests; (ii) the requirements of developing countries in the subregion or region in harvesting part of the surplus and (iii) the need to minimise economic dislocation in states whose nationals have habitually fished in the zone, or which have made substantial efforts in research and identification of stocks.
4. SGSSI is an Overseas Territory of the United Kingdom. Its constitution is set out in the SGSSI Order 1985 ("the 1985 Order"). For about 80 years, until 1985, SGSSI was a dependency of the Falkland Islands, but since 1985 it has been a wholly separate and distinct Overseas Territory. Section 4 of the 1985 Order creates the office of the Commissioner. Section 5 provides as follows:

"The Commissioner shall have such powers and duties as are conferred or imposed upon him by or under this Order or any law and such other powers and duties as Her Majesty may from time to time be pleased to assign to him and, subject to the provisions of this Order and of any other law by which any such powers or duties are conferred or imposed, shall do and execute all things that belong to his office according to such instructions, if any, as Her Majesty may from time to time see fit to give him through a Secretary of State."

5. By section 7 the Commissioner may constitute offices for SGSSI and appoint persons to fill those offices. By section 9 he is empowered to make laws "for the peace order and good government" of SGSSI. Provisions for the direction of Overseas Territories Government by Her Majesty's government are common in the constitutions of Overseas Territories but, in practice, formal instructions are almost never issued. Persuasive negotiation and advice usually achieves the desired result.
6. By a proclamation of 7th May 1993 (the 1993 Proclamation) the Commissioner of SGSSI declared a maritime zone over an area extending 200 nautical miles from SGSSI within which the government of SGSSI has exclusive jurisdiction over fisheries. The regime for controlling fisheries in the waters of SGSSI has been enacted under the powers conferred on the Commissioner by the 1985 Order. On 23rd July 1993 the Commissioner enacted the Fisheries (Conservation and Management) Ordinance 1993 (the 1993 Ordinance). The effect of the 1993 Ordinance which was replaced by a similar ordinance in 2000 (the 2000 Ordinance) was to prohibit fishing in the relevant area of the maritime zone without a licence.
7. The Director of Fisheries is charged with various responsibilities under section 4 of the 2000 Ordinance. These include issuing fishing licences. By section 4.2 the performance of his duties may be subject to the direction of the Commissioner. Thus the route for the direction of the Secretary of State in this case was through the Commissioner to the Director of Fisheries. Under section 4(5) the Director is required to have regard to provisions of CCAMLR when discharging his duties.
8. In summary, what happened in the present case was this. For the 2001 season, following advice from the Secretary of State, the Director issued licences to ten vessels but those vessels did not include the Claimant. The Claimant sought judicial review of the Director's decision not to give them a licence and the Supreme Court of SGSSI quashed the Director's decision. The Secretary of State then gave a direction to the Commissioner in the same terms as the advice that had previously been given and the Commissioner then gave a corresponding direction to the Director. The Claimant was again refused a licence on 7th June 2001 and now seeks judicial review of the Secretary of State's decision.
9. There was no targeted fishing for Toothfish in what is now the maritime zone until the end of the 1980s when USSR flagged vessels began to fish for Toothfish there. Following the economic collapse of the former Soviet republics, the USSR flagged vessels reduced their fishing activities in the area. The Chileans then began to exploit the fishing. However, it was not until the 1996/1997 fishing season that any United Kingdom or United Kingdom Overseas Territory flagged vessels began to fish for Toothfish in the maritime zone.
10. Fishing in the sub-Antarctic and Antarctic waters of the Southern Ocean is regulated by CCAMLR. The treaty was negotiated in the late 1970s to address both the threat of over-exploitation of fin fish in the Southern Ocean and concern at the implications of large scale fishing for the crustacean krill which is an ecological linchpin of the Southern Ocean food web and the staple food of many marine species.
11. CCAMLR was adopted in May 1980 and came into force two years later in April 1982. The Secretariat for CCAMLR is based in Hobart, Tasmania. CCAMLR is open to any state or Regional Economic Integration Organisation ("REIO"), for example the European Community. The executive body of CCAMLR is its Commission ("the CCAMLR Commission"), made up of members who are state parties plus REIOs. Acceding states which have not become members have observer status along with a range of inter-governmental and non-governmental organisations. Currently, the CCAMLR Commission is made up of 23 states plus the European Community (represented by the EU Commission). The United Kingdom was a founding state of CCAMLR and has been an active key member in the CCAMLR Commission ever since. The CCAMLR Commission meets annually in Hobart for two weeks in the autumn for the purpose of reviewing existing conservation measures and adopting new measures.
12. At its annual meetings the CCAMLR Commission adopts conservation measures under the provisions of Article 9(1)(f) and 2 of the Convention. These measures include matters such as the opening and closing of fishing seasons, TACs, specifications for fishing gear and so forth. Conservation measures become binding on all members of the Commission 180 days after their adoption unless a member places a reservation on the measure within 90 days.
13. It is for the member states of CCAMLR to implement CCAMLR measures. States are legally responsible for and have jurisdiction over their own flagged vessels. Coastal member states, such as the United Kingdom, with exclusive economic or maritime zones within the CCAMLR area are able to enforce CCAMLR regulations within those zones also in respect of foreign flagged vessels. Beyond the EEZ, on the high seas, no state has control over fishing or use of other resources save in relation to its own flagged vessels.
14. The majority of those states with Overseas Territories within the CCAMLR area have declared 200 mile EEZs around their territories. These include France around the islands of Kerguelen and Crozet, Australia around Heard Island, Norway around Bouvet Island, and South Africa in relation to Prince Edward and Mariou Islands. South Africa's policy is only to grant licences to fish for Toothfish to vessels registered under the South African flag, and which are at least 50 per cent South African owned. A similar policy is operated by Australia for territory within the CCAMLR area. France's policy, in contrast, is more akin to that employed by the United Kingdom in SGSSI waters with foreign flagged vessels licensed to fish in France's EEZ zones around Kerguelen and Crozet.
15. There are various reasons why simply setting the TAC does not alone provide sufficient management of the fishery. What is described as effort limitation in controlling the number, size, duration, or timing of access of vessels in or to a fishery is said by Dr Richardson, Head of the Polar Regions Sector, in the Overseas Territories Department of the Foreign and Commonwealth Office, to have been imposed with some success through licensing regimes but only in those CCAMLR waters subject to coastal state jurisdiction.

CHRONOLOGY

16. The Jacqueline was purchased by the Claimant from the Government of SGSSI in 1996. She had become that Government's property following forfeiture proceedings after arrest for fishing without a licence. At that time she was flagged in Belize and had considerable outstanding claims from creditors against her. She was purchased to fish for Toothfish and the SGSSI Government was aware of this. She was reflagged in the Falkland Islands. The Claimant had no involvement whatever in the vessel's previous irregularities when she was flagged in Belize and known as the Thunnus. The Claimant is a Falkland Island registered company, owned 25.1 per cent by Falkland Island residents.
17. On 31st December 1996 the Jacqueline made her first application for a licence to fish for Toothfish in SGSSI waters. One of the requirements of the licence was then, and has been ever since, that there should be a CCAMLR scientific observer on board. He had to come from a CCAMLR member state other than that of the flagged vessel. Another was and is that CCAMLR conservation measures have been complied with. The application was granted on 24th January 1997. Twelve other licences were granted: seven to Chilean flagged vessels; two to Spain; one to Japan; one to Korea, and one to St Helena.
18. An application for the 1998 season was made on 7th January 1998. The Claimant's letter accompanying the application said that "you will be aware that the Jacqueline fished in South Georgia last season fully in accordance with the conservation measures adopted by CCAMLR." It expressed the hope that British vessels would be given the highest priority, and pointed out that in the previous year she had been the only Falkland Island flagged vessel. Again the application was successful. This time licences were granted to ten vessels: four with a South African flag; three Chilean; two British, and one Uruguayan.
19. The application for the 1999 season was made on 1st February 1999. The covering letter said:

"Quark Fishing is fully conversant with all the conservation measures applicable within the CCAMLR zones, and is fully supportive of SGSS1 in their efforts to introduce best practice to the South Georgian fishery. We will of course have full provision as we did last year for the work of the independent observer."

20. The letter concluded by putting down a marker for a long term extended season licence. This time 11 vessels were granted licences: three were British flagged and the others from South Africa, Chile, Spain, Uruguay and Korea.
21. For the 2000 season the application was made on 14th January 2000. The covering letter again made the point that the the Claimant was fully conversant with CCAMLR conservation measures, invited safety inspections of all vessels, pointed out that the vessel had completed three increasingly successful seasons and suggested she might be given a five year licence. That year 14 licences were granted, the Claimant was not only successful in applying for the Jacqueline but also the Ibsa Quinto, a Spanish flagged vessel. This time there were four British flagged vessels, although the fourth, Argos Georgia, was licensed for experimental pot fishing. This has thus far proved unsuccessful, the only successful method of fishing for Toothfish being by long-line.
22. The subsequent reply to the Claimant's letter of 14th January came from the Overseas Territories Department of the Foreign and Commonwealth Office on 22nd February 2000. Presumably, the letter of 14th January had been sent on there from Stanley. This letter is important not only for its contents but also its source, namely London rather than the Falkland Islands.
23. The letter said that the author had discussed Toothfish licensing policy with the government of SGSSI and its consultants, the Marine Resource Assessment Group and that they did not favour long term licences for the time being. The letter continued:

"We try to achieve an equitable allocation of Toothfish licences between UK and foreign-flagged vessels. Whilst we recognise the importance of UK commercial interests in the fishery there is also considerable political mileage in signing MOUs, [I interpolate Memorandums of Understanding] with different countries as a means of reinforcing the message of our sovereignty over SGSSI. Long-term licences would restrict our flexibility in this respect.

The fishery has been relatively stable in the past few years with vessels such as yours returning on an annual basis. The price of Toothfish has remained at a commercially profitable level. These factors have placed the GSGSSI in a good position to retain faithful clients at the same time as maintaining the interest of other operators who wish to participate in the fishery. The strong competition for licences should provide an incentive for all operators to employ good practices and full compliance with CCAMLR Conservation Measures. However, should the situation change we could review with the GSGSSI the possibility of issuing long-term licences to operators with a proven track record."

24. There was no suggestion in this letter, nor had there been anywhere else, that the Jacqueline had in any way failed to meet in full the CCAMLR conservation measures attached to each year's licence.
25. On 1st July 2001 the Jacqueline was inspected at sea and found to be in compliance with all conservation measures, save one. The inspection was carried out by a CCAMLR inspector and, as I understand it, without significant prior warning. The report says that the captain and crew were fully cooperative and that the general appearance and condition of the vessel was very good. There was no evidence of plastic lying on deck. The one conservation measure not fully complied with was CM63/XV. The report records:

"The vessel was only in partial compliance with this Conservation Measure. Bait Boxes were sealed with plastic bands. However these bands are stored, then burnt on board. Boxes of Toothfish are sealed with tape."

26. I shall return to the CCAMLR conservation measures later. What lies behind CM63/XV is the protection of fur seals who have historically become entangled in plastic packaging bands in the Convention area. On 3rd August 2000 the Acting Commissioner in Stanley wrote to the Claimant about the inspection, drawing attention to the non-compliance. Each year the Jacqueline was inspected in South Georgia before commencing fishing for, inter alia, compliance with conservation measures. Other than the plastic bands, on 1st July 2000, no failure to comply was ever drawn to the Claimant's attention. There is no evidence what the outcome was of the pre-season inspections of other vessels or whether any of them underwent similar inspections to that of the Jacqueline on 1st July 2000 and, if so, with what result.
27. On 18th December 2000 invitations were sought for licences for the 2001 season for pot fishing by the 3rd January 2001 and for long-line fishing by the 12th January 2001. The letter said it was likely that ten licences would be offered for longlining in sub-area 48.3, and a further four licences for pot fishing. The licences for longlining would be for 400 tonnes and for pot fishing for 100 tonnes. The long-line fishing season would open on 1st May 2001 and close on 31 August 2001 or whenever the TAC was taken, if earlier. As previously, each vessel would be required to have a scientific observer. Attention was drawn in the letter to CCAMLR conservation measures of particular relevance noting again, as previously, that copies of the measures would be attached to any licence. Any vessel licensed would be required to undergo a prefishing inspection in South Georgia. This would check for compliance with conservation measures, absence of packaging bands, mitigating measures to avoid incidental mortality of sea birds etc. A new feature for the 2001 season was that, for the first time, individual vessels would be allocated a specific quota i.e. the TAC would be divided up between the licensed vessels.
28. On 12th January 2001 the Claimant applied for a licence for long-line fishing for Toothfish in area 48.3 and area 48.4, but nothing turns on this. The accompanying letter stated the Claimant was fully conversant with the applicable CCAMLR conservation measures and fully supported SGSSI in its efforts to introduce best practice into the South Georgia fishery. They pointed out that the Jacqueline had successfully fished the fishery every year since her purchase from the GSGSSI and repeated their long-term commitment and offer of an advanced payment against a five year licence in order to fund protection vessels.
29. On 8th February 2001 the Director of Fishing wrote to Dr Richardson in London saying he had received 39 applications for licences. This letter was only disclosed by the Secretary of State after the court ordered that it should be. It is of some importance as it indicates the basis on which the Director was granting licences. Leaving aside those who were only interested in pot fishing licences, 36 wanted long-line licences. One vessel was immediately discounted as the Seychelles are not a member of CCAMLR.
30. The Director pointed out that CCAMLR having set a TAC of 4,500 tonnes for area 48.3 with 600 tonnes allocated to pot fishing, 3,900 tonnes remained for longlining. Thus they could offer 9 licences for 400 tonnes and 1 licence for 300 tonnes. He gave a recommended list of applicants for long-line licences saying:

"As usual the decision is based on a number of factors:

. loyalty to the fishery;

. as wide a spread of flag states as the number will allow;

. taking into account oral agreements with the Koreans for licences and their undertaking to undertake an experimental squid fishery in the SGMZ in return;

. also taking into account local politics;

. Information from ISOFISH and adherence to CCAMLR Conservation Measures."

[ISOFISH is a freelance website that gives information about rogue vessels in CCAMLR areas].

31. The flag state breakdown of the 39 applicants was four from the United Kingdom or United Kingdom Overseas Territories and the rest from elsewhere. The Director's proposal was to give licences to the following:

Argos Helena United Kingdom

Argos GeorgiaUnited Kingdom (and 28 tonnes in 48.4) Lyn United Kingdom (300 tonnes)

Jacqueline United Kingdom

Moresko 1 Korea - (both dependent on

Hongjin 101 Korea - squid fishery agreement)

Isla Camila Chile

Punta BallenaUruguay

Lugal Pesca Uruguay

Volga Russia

32. The Director asked Dr Richardson for any comments and said he intended to send out notifications by the end of the following week.
33. Dr Richardson's evidence is that he had concerns in relation to the distribution of licences amongst vessels sailing under the flags of different states. Granting four out of 10 to United Kingdom Overseas Territory flagged vessels would reduce the number of vessels from other flagged states which were CCAMLR members that could be granted licences. He was concerned that the failure to grant any licence to vessels flagged in certain states that were parties to CCAMLR could cause diplomatic repercussions. These could be expected to have a serious impact on the United Kingdom's position in dealing with those states in fisheries matters and could cause difficulties in the United Kingdom's dealings with the CCAMLR Commission. In his evidence Dr Richardson says:

"CCAMLR is an important constituent of the Antarctic Treaty System ("ATS") - the body of treaties and regulations that provide for the orderly governance of Antarctica. The maintenance and smooth operation of the ATS, including CCAMLR, is an important British foreign policy objective, as is the security and prosperity of the UK's Overseas Territories in the region including SGSSI.

The UK is well aware that given the long-standing disputes in and around Antarctica, the region could well become the subject of international discord in the absence of the stablising influence of the ATS. The ATS does not endeavour to resolve directly any of these disputes and instead promotes activities of a peaceful nature, in particular international scientific co-operation and the protection of the environment. As part of the ATS, CCAMLR has a key role in maintaining the sound and sustainable management of fisheries in the Southern Ocean which in turn is of environmental and material benefit to UK Overseas Territories in the region including both SGSSI and the Falkland Islands...

The CCAMLR institutions provide a cooperative framework within which the protection of the environment in the Southern Ocean can be achieved. Decisions are taken by consenus...Furthermore, it is only by cooperation between the parties that the proper enforcement of Conservation Measures can be ensured. The negotiations between the Member States on these matters are made all the more delicate by subsisting disputes between them relating to the territories around the Antarctic. In particular, Argentina claims sovereignty over South Georgia and the South Sandwich Islands and receives varying degrees of support from certain other CCAMLR Member States.

Whilst the Convention (Article IV) states that no actions taken whilst the Convention is in force shall constitute a basis "for asserting, supporting, or denying a claim to territorial sovereignty in the Antarctic Treaty area or create any rights of sovereignty in the Antarctic Treaty area", the UK's dealings with CCAMLR Commission Members, nonetheless, take place against a background of actual and potential disputes concerning sovereignty outside the Antarctic Treaty Area, but nevertheless within the area regulated by CCAMLR, that gives such dealings a considerable degree of diplomatic sensitivity.

HMG is acutely aware of this sensitivity and, since it is responsible for the conduct of foreign affairs in relation to its Overseas Territories, takes such matters into account when considering, for example, the allocation of licences by the Government of SGSSI to fish for Toothfish within the Maritime Zone. Were the UK or its territories to act in a way perceived to be inequitable by certain Commission Members, this could undermine the UK's ability to achieve a favourable consensus within the Commission on issues such as the setting of the TAC for sub-area 48.3. Undoubtedly, any sense of grievance amongst the UK's CCAMLR partners could potentially be exploited by Argentina, with a view to frustrating the immediate objectives of the United Kingdom within CCAMLR. Any disharmony of this nature could severely disrupt the proper operation of CCAMLR and, eventually, lead to the collapse of the cooperative system."

34. Dr Richardson's approach was as follows. The overall size of the TAC could not be changed since it was set through the CCAMLR Commission. The number of licences and size of quota allocated to each licence to be granted had been proposed by the Director of Fisheries and he did not consider the proposal unreasonable. He, therefore, emphasised that an important consideration of the SGSSI in allocating the licences should be ensuring as equitable a distribution of licences amongst CCAMLR flag states as possible, whilst taking account of particular vessels' track record, in terms of compliance, with CCAMLR conservation measures and also loyalty to the fishery.
35. He said the principal result of his suggestion was that the allocation of licences to United Kingdom flagged vessels would be reduced from 4 to 2 (the same number as had been allocated in 1997 and 1998). Two of the licences which the Director had proposed to grant to United Kingdom flagged vessels would instead be allocated to vessels sailing under the flags of other CCAMLR states. He further suggested that in allocating between vessels of a particular flag state, preference should be given to those with the best records of compliance with CCAMLR. The two licences allocated to the United Kingdom Overseas Territories flagged vessels should, therefore, be allocated to those vessels which had the best compliance records according to the CCAMLR Scientific Committee Report for 2000.
36. Mr Jarvis, the Director, says Dr Richardson informed him that on the balance of information provided by CCAMLR this meant that the Jacqueline, which had a significantly poorer record than the Argos Helena and Argos Georgia, should not be granted a licence. He added in his evidence that given the local political sensitivity of refusing to licence United Kingdom Overseas Territories (and, in particular, Falkland Island) flagged vessels he discussed the matter with the Commissioner, Mr Lamont, towards the end of February 2001. Mr Lamont in turn raised it with Mr John White, Head of the Overseas Territories Department of the FCO, who reiterated the advice of Dr Richardson.
37. It is perfectly clear that whilst the FCO was giving advice rather than a direction, had the Director indicated he was not minded to follow the advice, a direction would have been given. Consequently the Director, having discussed the matter with the Commissioner, proceeded to allocate the licences in accordance with Dr Richardson's advice.
38. On or about 14th March 2001 all applicants received a letter containing a list of vessels in respect of which licences had been issued. The Jacqueline was not among them. On 15th March 2001 Mr Summers, a director of the Claimant, went to see Mr Jarvis. This was followed by a letter from Mr Summers dated 19th March 2001, which recorded a number of points made at the meeting. The letter pointed out that the Jacqueline was the only vessel that had remained loyal to the fishery for the previous four years but had not been offered a licence for 2001 and that this was in marked contradistinction to the Insung 66 which had abandoned South Georgia in 1997 and others with no record in South Georgia at all. This was contrary to the frequently stated policy by GSGGI that loyalty to the fishery was a key element of the evaluation. The letter went on:

"You said to me that the reason that the Jacqueline was not offered a licence this season was only because she did not compare well to other vessels in respect of compliance with CCAMLR conservation measures; you were however not able to provide any evidence of this, or indicate how this conclusion may have been reached, other than to speculate that the CCAMLR observer from last season may have delivered a negative report. We have the draft of the CCAMLR observer's report which you are welcome to review; it contains no criticisms whatsoever of our compliance with conservation measures. We are not aware that any previous report contained any negative comment either; had there been any it would surely CCAMLR/GSGSSI and/or the Flag State would have passed it on to the owners."

39. Mr Summers continued that the Claimant refuted any adverse comparison with other vessels offered licences and asked to be provided with the full evaluation by CCAMLR and details of how it was carried out. Mr Summers made the reasonable point that since the information was said to have been relied upon for the purpose of evaluation it must be available for public scrutiny.
40. Mr Summers made another point in the letter that is of indirect relevance to the issues in this case. The Claimant owned another a vessel, the Ibsa Quinto (not flagged in the Falklands but in Spain). Due to an administrative error this vessel's application had been overlooked. This, however, was eventually resolved by allocating to her untaken-up tonnage from the pot fishing allocations.
41. Two days later, on 21st March, the Claimant's solicitors wrote to the Overseas Territories Department of the FCO asking urgently for written reasons for the decisions not to grant the Jacqueline and the Ibsa Quinto licences and for a copy of the fisheries policy and licence allocation policy. Despite repeated requests there was no reply until by fax of 10th April 2001 proceedings were threatened in the absence of a response by 12th April. With the fishing season beginning on 1st May the matter was urgent. On 10th April Dr Richardson wrote saying the request should be directed to the GSGSSI and on the same day a substantive response was sent by the Attorney General from Stanley on behalf of GSGSSI. The delay on the part of the Foreign and Commonwealth Office in responding to an urgent and eminently reasonable request was, in my judgment, unacceptable.
42. The Attorney General's letter is interesting. It says the policy for granting licences has not been published but may, in part, perhaps be divined from the 2000 Ordinance. He continued:

"The policy of GSGSSI gives prime importance to the conservation of fish stocks, the development and management of the fishery and compliance with the United Kingdom's obligations under [CCAMLR]. The ordinance requires the Director of Fisheries in the exercise of his functions to have regard to these Convention obligations."

43. He went on to point out that, because the TAC had been significantly reduced, the number of vessels which could be granted licences was also reduced. The Director had originally in mind to grant four licences to British flagged vessels of which the Jacqueline would have been one, but following consultation with the FCO he had decided to license the two British flagged vessels which had the better record of compliance with CCAMLR conservation measures. Licensing four United Kingdom flagged vessels would alienate other CCAMLR members whose vessels had previously fished in South Georgia waters.
44. This led to an application for judicial review being commenced on 3rd May 2001 in the Supreme Court of SGSSI. A prompt hearing took place on 31st May and 1st June 2001. The Chief Justice quashed the Director's decision and he was directed to reconsider the Claimant's application for a licence and communicate his decision to the Claimant by 4 p.m. on 8th June 2001. He granted the Director leave to appeal. That leave was not, however, exercised. On 7th June the Director refused a licence following a direction to him from the Secretary of State through the Commissioner. The basis of the Chief Justice's decision was, first, that the advice given by the Commissioner did not amount to a formal direction and, second, that the Director erroneously believed he had no choice but to follow the advice. He pointed out that the Director seemingly was at a loss to explain, when he met Mr Summers on 15th March 2001, why the Jacqueline should not have been granted a licence, having to fall back on the advice of Dr Richardson that the vessel's compliance record was in some way inadequate. He did not know in what way nor what criteria might have been applied. He had closed his mind to the factors which should have caused him to reach his decision (and, indeed, had caused him to reach his earlier decision). He concluded that the Director was in breach of the obligation placed on him by the 2001 Ordinance and that it was irrational and unlawful. He said:

"In concluding thus, I do not say that the decision of the Director was wrong, although it would be open to such conclusion having regard to the particular decision which he had reached prior to the intervention by the Foreign Office. It is quite possible that, had the Director the necessary information before him to reach a decision based upon, inter alia the CCAMLR compliance records in full he might well have reached the same decision as that ultimately issued by him. I cannot know whether that would have been so."

45. The Chief Justice made it clear that his decision was in no way dependent on the data used by the FCO in producing a ranking of vessels that excluded the Jacqueline. There was before him, as there has been before me, a vigorous dispute about the accuracy and reliability of this material. He did, however, make the point that he was puzzled by the FCO's reliance on compliance relating to the vessel alone. This seemed to be only part of the picture. Surely it was relevant who was operating the vessel rather than just the identity of the vessel itself.
46. He concluded by saying this:

"I make no direction as to the factors to be taken into account by the Director when reaching his decision. The statutory obligations set out in Section 4 of the Fisheries Ordinance are unambiguous, and this is a function which the Director has exercised in relation to numerous other licence applications. He is free to have regard to any advice or observations which may be offered to him regarding the current licensing round, but in the absence of a clear instruction pursuant to the provisions of the Ordinance, he must use his own discretion in reaching that decision. He may well feel it appropriate to grant a licence in respect of the Jacqueline having regard to his original decision, however his decision as to whether or not to do so remains unfettered within the above parameters."

THE DIRECTION

47. The direction signed by the Secretary of State for Foreign and Commonwealth Affairs was in these terms:

"Accordingly, in the exercise of my powers under section 5(1) of the South Georgia and South Sandwich Islands Order 1985, on behalf of Her Majesty, I hereby instruct the Commissioner in the exercise of his powers under section 4(2) of the 2000 Ordinance, to direct the Director not to grant a licence to fish for toothfish during the Fishing Season to any UK or UK Overseas Territories flagged vessels other than the Argos Georgia and the Argos Helena."

48. The direction was preceded by a number of recitals. These recitals included that the Director had informed him that he was minded to grant 10 licences: nine for 400 tonnes and one for 300 tonnes and to allocate 600 tonnes for pot fishing, making a total of 4,500 tonnes being the TAC. Also that the Director was minded to grant four out of 10 of the licences to United Kingdom Overseas Territories flagged vessels. Recital (v) recorded that having regard to the need to maintain the efficient and effective operation of CCAMLR, on the basis that there were to be 10 licences, the number of United Kingdom or United Kingdom Overseas Territories flagged vessels should be two out of 10 and that the selection of those two should be on the basis of the vessel's comparative record of compliance with CCAMLR conservation measures.
49. Recital (v)(c) records how the selection is to be made:

"In the light of the information contained in the Nineteenth CCAMLR Report including, in particular, the information contained in the Report of the CCAMLR Working Group on Fish Stock Assessment at Tables 54 and 55 thereof, the fishing vessels Argos Georgia and Argos Helena had the best two records of compliance with the relevant CCAMLR Conservation Measures of UK or UK Overseas Territories flagged vessels applying for longline toothfish fishing licences;"

50. Recital (xii) records that granting a quota to the Jacqueline would require the Director to vary the licences of other vessels so as to reduce the amount of quota already lawfully granted to them.
51. It is not disputed that the Secretary of State's direction is a public law decision that is reviewable on ordinary judicial review principles. But this is not an ordinary judicial review case where the court has to examine a decision by one person or body alone. The complication in this case arises from the fact that the underlying decision, of which complaint is made, emanated from a different person, the Director of Fisheries of SGSSI. This explains why there have been judicial review proceedings in two different and separate jurisdictions.
52. I agree with Mr Kenneth Parker QC for the Secretary of State that it is necessary to analyse with some care the precise nature of the judicial review in these proceedings. The Supreme Court of SGSSI quashed the decision taken on or about 14th March 2001 not to grant the Jacqueline a licence and remitted the Jacqueline's applications for a licence to the Director to reach a decision. The grant of licences to other vessels remained untouched.
53. Mr Parker went on to submit that the reason the decision of the Director was unlawful was of a procedural nature. The Director believed he had been "instructed" by the Secretary of State but, in truth, he had only been "advised". Whilst I regard this as the ratio of the Chief Justice's decision, it does not follow that had the "advice" been an "instruction" the decision would have survived. In my judgment it is too simplistic an approach to say that the only flaw in the decision not to allocate a licence to the Jacqueline was procedural and could be cured by the issue of a formal instruction.
54. Now it is true that by 7th June 2001 the cake had been divided up and there was no slice left to allocate to the Claimant, in the sense that the TAC had been entirely allocated to other licensees. But that in itself is not in my judgment, in the circumstances of this case, a good reason for the Secretary of State giving the direction that he did.
55. It is now I think clear that in practical terms what happened was this. The Director was left to get on with the issue of fishing licences subject to the overall eye of the FCO in London and, in particular, Dr Richardson. Quite understandably the FCO was concerned with any wider diplomatic implications. When Dr Richardson learned, following the letter of 8th February 2001, that the proposal was 10 licences for long-line fishing (subsequently corrected to 11) for a TAC of 3,900 tonnes as against the previous year (13 licences for 5,200 tonnes) he felt that granting licences for 4 United Kingdom flagged vessels was too high a proportion and would have potentially adverse diplomatic repercussions, bearing in mind the sensitivity of the sovereignty issue of SGSSI and the Falkland Islands. Accordingly, he advised the Director through the Commissioner to reduce the number of United Kingdom flagged vessels from four to two and spelt out the criteria for making the choice, namely the vessels with the best records of compliance with CCAMLR requirements.
56. Absent any intervention by the FCO or the Secretary of State, the decision-maker on the grant of a licence is the Director of Fisheries. It is he who has to weigh up the various considerations that he spelt out in his letter of 8th February 2001. It was at this point that the FCO entered the process, essentially accepting most of the decision-making process leading to the grant of licences but adding a new factor on one particular aspect, the number and choice of United Kingdom flagged vessels. Viewed in this light, the decision is made by two decision-makers rather than one.
57. It is the Secretary of State's case that he holds the trump card by virtue of section 4 of the 1985 Order. But this is not a trump card that can be played at any time and whatever the circumstances. It is accepted that ordinary judicial review principles apply. The problem arises where it is played on to what essentially is and has been someone else's decision-making process, in this case the grant of licences by the Director. Mr Vaughan QC for the Claimant submits that the effect of the Secretary of State's decision on 7th June 2001 (and it would have been just the same in March had the advice been framed as a direction) is to impose an entirely new policy which excludes track record and local political considerations, both of which were specifically referred to in the letter of 8th February. The effect of the new policy is to remove all Falkland Island flagged vessels from the SGSSI fishery, the other United Kingdom flagged vessels being from St Helena, some 3000 miles north of SGSSI. It is, I think, clear that but for the intervention of the Secretary of State, the Claimant would have been granted a licence.

A DIRECTION BY THE SECRETARY OF STATE IN MARCH 2001

58. Would a direction by the Secretary of State rather than advice in March 2001 have been lawful? It is I think helpful to look at this question before going on to consider the legality of 7th June 2001 direction. The Secretary of State's general powers to give instructions to the Commissioner has to be considered in the context of the 2000 Ordinance. It is this Ordinance that prescribes the Director's powers and responsibilities. He is responsible for, inter alia, the collection of data, statistics and other relevant information (4(1)(b)); the monitoring, control and surveillance of fishing and the regulation of fishing (4(1)(d)(e)); and the variation etc of licences (4(1)(f)). It is true that he is, in the performance of his duties, subject to the direction of the Commissioner, just as the Commissioner is subject to the direction of the Secretary of State, but that in my judgment does not give the Commissioner or the Secretary of State an unfettered right to give any direction he wishes at any stage in the licensing process that he wishes. For example, he could not require the Director to disregard the provisions of CCAMLR to which he is by section 4(5) required to have regard.
59. Mr Vaughan draws particular attention to section 5(10) which gives the Director specific power to vary a licence and points out that this power is additional to the power to revoke or suspend a licence because of the conduct of the licensee. I shall return to this later, but it is relevant to Mr Vaughan's argument that while the season was still being fished the Director could have reallocated part of the uncaught quotas of other licensees to the Claimant.
60. The 2000 Ordinance, like the 1993 Ordinance before it, places on the Director of Fisheries, as his name suggests, the job of conserving and managing the relevant fishery. The unchallenged evidence of Mr Summers was that Mr Jarvis told him at their March meeting that the reason the Jacqueline was not offered a licence was only because she did not compare favourably with other vessels in respect of compliance with CCAMLR conservation measures. He was not, however, able to provide any evidence of this or indicate how this conclusion may have been reached other than to speculate that the CCAMLR observer from the previous season may have produced a negative report.
61. It is true that Dr Richardson is an expert on CCAMLR matters and is regarded as such by those in the Falklands. But the tenor of Mr Jarvis' evidence, to which I have just referred, suggests that the exercise of his power under the 2000 Ordinance was effectively being taken out of the Director's hands as far as the Jacqueline was concerned. It should have been he who made the decision, albeit guided in part by material supplied by Dr Richardson, as to which vessels had the best record of compliance with CCAMLR conservation measures. As Mr Jarvis pointed out in his evidence: "He [Dr Richardson] informed me that on the balance of information provided by CCAMLR, this would mean that the Jacqueline, which had a significant poorer record of compliance with CCAMLR rather than [named vessels], should not be granted a licence." As Chief Justice Wood pointed out, at the time of his direction to refuse a licence to the Jacqueline, the Director had clearly not been in a position to apply his mind to section 4(5) of the Ordinance and the CCAMLR requirements.
62. There was debate before the Chief Justice as there was before me about the accuracy of the data relied on by the FCO to establish the Jacqueline's position in relation to the other vessels on CCAMLR compliance. The Chief Justice, having made clear that his decision did not turn on this issue, made this observation at page 40 of his judgment:

"On reading the papers, I was somewhat puzzled by the relating of compliance data by the Foreign Office to the vessel alone. This seemed to me only part of the picture. Ships are inanimate, and once a licensing authority is satisfied that a vessel meets the appropriate physical criteria (e.g. safety measures, navigation and identification equipment), it is less the vessel and more the manner of operation which would be of concern to the licensing authority. It would, for example, be possible for a vessel which had an excellent compliance record later to become subject to the control of a master, charterer, or owner who had a poor record of compliance in those waters or elsewhere. Similarly, a vessel which had a poor compliance record in earlier years might now be under the control of those with an impeccable record. Counsel were not able to help me with this.

Similarly, it is apparent that when producing a ranking order based upon the figures actually used by the FCO, where data was not available relating to a particular vessel, the assumption was made that this equated to compliance on the part of that vessel. Whilst to do otherwise might well have been inequitable in so far as those other vessels were concerned, it may well have had the effect of distorting the position in which the MV Jacqueline was placed in the overall ranking."

63. I respectfully agree with these observations. I shall return shortly to the factual issue of the Jacqueline's CCAMLR compliance.
64. The Claimant's case is that the Secretary of State's new policy was rigid, arbitrary and partial in that:

*the CCAMLR compliance test applied only to United Kingdom flagged vessels and not to all vessels seeking a licence;

*it prevented any other United Kingdom flagged vessels being licensed;

*it allowed non-United Kingdom flagged vessels with no or no real conservation credentials access to the fishery as of right;

*it was based on fundamental errors of fact.

65. The Claimant also complains that there was a change of policy part way through the licensing process.
66. This case involves the application of the rules of natural justice and procedural fairness to an application for a licence. There has been some debate about the application of the rules of natural justice to situations where the Claimant is seeking to obtain a benefit of some kind rather than to prevent something that he already has from been taken away. In McInnes v Onslow Fane [1978] 1 WLR 1520 Megarry J drew a distinction between three different types of case:

(i) "forfeiture" or deprivation cases where a vested interest (such as a licence to trade) has been withdrawn;

(ii)"application" cases, where no interest yet exists, but is merely being sought (such as an application for a licence, passport or a council house); and

(iii) "expectation" cases where there is a reasonable expectation of a continuation of an existing benefit which falls short of a right.

67. The present case falls most naturally into the second category which, it was suggested, would not qualify for a fair hearing, whereas the other two categories normally would. As it is pointed out in de Smith Woolf and Jowell on Judicial Review of Administrative Action 8-1007 this analysis would, if strictly applied, lead to anomalies and injustice. de Smith points out at 8-009 that there are in general practical reasons why a hearing cannot be given to every applicant for a licence but that situations can be imagined where the unfairness of the summary refusal of a licence, or the summary award of a licence to a competitor will be so manifestly unfair that it would be right for a court to hold that the deciding body is under a duty to give the applicant an opportunity to make representations (whether in writing or orally) and of being apprised of all information on which the decision is founded.
68. In my judgment the rules of natural justice are underpinned by fairness and, accordingly, they require to be tailored to the particular administrative decision-making exercise under consideration.
69. The grant of a licence to a vessel for Toothfishing in SGSSI waters is an extremely valuable commodity. The season lasts from 1st May until 31st August, or sooner if the permitted catch is taken earlier. The licence costs £233,000 and is worth and estimated £2.5m income. In my judgment there is no reason why applicants for such a licence should be left in any doubt about the criteria upon which they will be granted. The process should be transparent and the criteria published at the time applications are invited. It is not satisfactory to say, as the Attorney General did in his letter of 10th April 2001, that the policy has not been published as such, although it may in part perhaps be divined from the Ordinance. If the Secretary of State is minded to give a direction of the kind that he gave in the present case, and in my judgment he was fully entitled to take into account the wider international picture, then I can see no reason why it should not, in the ordinary course of events, be given at the same time as an applications are invited for licences so that all applicants can know the basis on which the decision will be made.
70. It seems to me clear that what actually happened was that the Secretary of State's advice/direction only bit on United Kingdom flagged vessels. The applications for licences for all the other vessels were decided by the Director in accordance with the criteria set out in his letter to Dr Richardson of 8th February 2001. But there is a further problem: whether the yardstick required by Dr Richardson (CCAMLR compliance) was accurately and fairly applied.
71. I have no doubt that what Dr Richardson required was a simple test by which he could eliminate two of the four United Kingdom Overseas Territories flagged vessels. He chose Tables 54 and 55 in the report of the CCAMLR Working Group on Fish Stock Assessment and concluded from these that the Argos Georgia and the Argos Helena had better records of compliance than the Jacqueline or the Lyn. But he did not tell the Director this and the inference is that in March 2001 the Director was unaware of the basis on which Dr Richardson had concluded which vessels had the better CCAMLR compliance record.
72. Mr Vaughan makes the point that what Tables 54 and 55 show and actual compliance with CCAMLR conservation measures are not the same thing. So, he argues, it does not follow that in relying on Tables 54 and 55 Dr Richardson is necessarily applying his own criterion of granting licences on the vessel's comparative record of compliance with CCAMLR conservation measures. Indeed he went further in argument, submitting that if one looked beyond Tables 54 and 55, the Jacqueline had an almost impeccable record; the tables are erroneous. It follows, so he argues, that the Secretary of State's advice and subsequent direction was made on a flawed factual basis. The direction should be quashed because of misunderstanding or ignorance of an established and relevant fact: see Lord Slynn in R (on the application of Alconbury Developments Ltd) v SSETR [2001] UKHL 23 para 53. In other words, Dr Richardson was wrong about the Jacqueline's CCAMLR compliance record.
73. Mr Parker's approach is that the granting of these licences involved the distribution of a scarce resource. The Secretary of State was entitled to limit the number of United Kingdom flagged vessels and relying on Tables 54 and 55 are a perfectly rational method of choosing between the applicants. He was not bound by the provisional decision of the Director or the factors that led to it. No more could be expected than to go to the CCAMLR tables. The evidence goes nowhere near showing the tables are so demonstrably flawed that they cannot be relied upon. What, he argues, would be the answer to the Argos Georgia and the Argos Helena if Dr Richardson had not relied on those tables and had granted a licence to the Jacqueline on the basis of other evidence of compliance?
74. As the argument developed it became clear that Table 54 added nothing in practical terms to Table 55. Table 55 seeks to set out in tabular form compliance with conservation measure 29/XVI regarding night setting, correct configuration and use of streamer lines and offal discharge practices in the Convention area in the years 1998-2000. It shows that the Jacqueline complied with the night setting requirements in 1998 and 1999 but not in 2000, and that she failed to comply with streamer line and offal discharge requirements in each of the three years. The Claimant disputes the conclusions in Table 55.

NIGHT SETTING

75. The CCAMLR requirement is that longlines should be set at night (i.e. during the hours of darkness between the times of nautical twilight). The exact times of nautical twilight are set out in the Nautical Almanac Tables for the relative latitude, local time, and date. Table 55 was compiled from the observer's report which, as I understand it, was interpreted at CCAMLR headquarters in Hobart. Every vessel was required to carry a scientific observer who was, I was told, not there to act as a spy and ensure compliance with conservation measures. Nevertheless at the end of the trip he produced a report which touched on this. In the 2000 season the observer on the Jacqueline was Spanish, thus there is the additional factor of translation into English to consider when interpreting what he said in his report. The conclusion in Table 55 that the Jacqueline did not comply in 2000 with the night setting requirements is based on two separate sentences in his report. In paragraph 7 under "Scrutiny of Fishing Strategy" it is said: "All sets were carried out during the times of nautical dusk, night and nautical dawn." And in paragraph 10.1: "Setting operations" it is said: "Most setting operations were conducted during darkness and the streamer line was used normally." On reading these statements I am left in considerable doubt whether there was any failure to comply with the CCAMLR night setting requirement. On one view there was not; on another there might have been. The observer noted that no hooked seabirds were observed during the setting operation which suggests either there was not a breach or, if there was, it was not of any significance.

STREAMER LINES

76. Conservation measures are a developing science and thus it is not surprising to find changes from year to year. For the year 2000 the streamer line specifications covered:

*attachment height above the water;

*total length;

*number of streamers per line;

*spacing of streamers per line;

*length of streamers.

77. It was a requirement to carry spare streamers. The Jacqueline was recorded in Table 55 with a failure, but it is apparent from the analysis of Table 54 that her only failure was as to the total length of the streamer line which was recorded as 80 metres rather than the required 150 metres. This is what the observer had to say:

"Only one streamer line (80m) was used during 68 settings observed (72 sets) and was of own design. The vessel had two more lines for replacement use. It always seemed effective in the settings with presence of seabirds."

78. The Jacqueline had developed a streamer of its design to scare away the birds and the observer appears to have regarded this as effective. The Claimant submits the failure recorded in Table 55 to comply with streamer requirements (a) was only as to one detail of the requirement and (b) of a technical nature in the light of their other bird prevention measures. This argument is fortified by the fact that the Jacqueline successfully underwent a SGSSI inspection at King Edward Point, South Georgia, before the start of the 2000 fishing season (as indeed she had done before in the previous season) and she was inspected by CCAMLR at sea on 1st July 2000. The only deficiency not referred to in Table 55 was the plastic bands on the bait boxes.
79. It is true that the Jacqueline is recorded as failing the streamer line requirement in both 1998 and 1999. The reason again appears to be the length of the steamer line. No effort appears to have been made, either on the inspections or any other time, to draw these or any other CCAMLR compliance deficiencies to the attention of the Claimant.

OFFAL DISCHARGE

80. The Jacqueline is recorded in Table 55 as having failed to meet the offal discharge measure for all three years: 1998, 1999 and 2000. There is no dispute about 1998 and 1999. The recording for 2000 appears quite clearly to be wrong. The relevant measure provides:

"The dumping of offal is prohibited while longlines are being set. The dumping of offal during the haul should be avoided. Any such discharge shall take place only on the opposite side of the vessel to where the longlines are being hauled."

81. There are two paragraphs in the observer's report that are material. In paragraph 10.2:

"Many birds were congregated around the vessel during the hauling activities, especially next to the discharge point."

82. And paragraph 11.2:

"Offal was discharged from the vessel during catch processing. The discharge site was on the starboard side opposite the hauling point. Generally, processing started once there was sufficient number of fish in the factory. The offal consisted of heads, tails and viscera. There was not sufficient space to retain the offal on board until the haul had finished."

83. The offal discharge regulation had been slightly tightened for the 2000 season but nothing in my judgment turns on that. The Jacqueline was in breach of the 1998 and 1999 season requirements because the offal discharge chute was 6m astern of and on the same side as where the line was hauled. The discharge chute was moved to the other side of the vessel prior to the 2000 season. The survey report dated 5th April 2001 shows the fish waste discharge to be on the port side. It is inconceivable that the pre-season inspection at King Edward point in 2000, or 1st July inspection at sea would both have failed to point out the offal discharge point was on the wrong side of the vessel had that been the case. I think the observer must have meant "port" when he said "starboard" in paragraph 11.2 of his report.
84. My conclusion is that Table 55, on which Dr Richardson relied, does not give an accurate or fair picture of the Jacqueline's CCAMLR compliance record. This was damaging to the Claimant because it was relied on to determine the Jacqueline's CCAMLR compliance record in relation to other United Kingdom flagged vessels without the Claimant having the opportunity to point out the deficiencies. Mr Parker submits that the CCAMLR report and with it Table 55 are documents in the public domain that were available to the Claimant from the autumn of 2000. The evidence leaves me in some doubt about the availability and certainly the accessibility of these documents. More significantly, however, it was never made clear to the Claimant or, indeed, any other licence applicants, that the observers' reports would be interpreted so as to produce a record of comparable compliance between various vessels, or that it would be used in determining future licence applications.
85. There were other and, in my view relatively minor, CCAMLR compliance failures by the Jacqueline (e.g. plastic bands and weights) but since what was being conducted was a comparative exercise to eliminate two vessels from four and since these matters did not figure in Table 55, on which Dr Richardson based his decision, I do not regard them as of any significance. The position would be otherwise were the exercise being conducted on an actual comparison between all four vessels with all CCAMLR compliance measures.

OTHER VESSELS

86. Mr Vaughan submits there is no fair comparison. The Argos Georgia which did not fish in 1998 and 1999, is recorded as failing the streamer line requirement on the same basis as the Jacqueline for 2000 but complying with night setting and offal discharge. The Argos Helena fished all three years and is recorded as having complied except with regard to streamer requirements for 1999 and 2000.
87. It was not possible during the hearing to analyse Table 55 against the observer's reports for these vessels. Dr Richardson did, however, produce a further statement after the conclusion of the hearing. He, with colleagues, has examined the four material reports and concluded that one of the findings in Table 55 was not correct when compared with the observer's report, and in one other case it was not possible to see how CCAMLR had reached its conclusion. The Argos Helena is incorrectly described as having complied with the offal discharge requirement in 1998 and the same vessel's night setting compliance cannot be confirmed.
88. The Claimant points out that since the Argos Georgia did not fish in SGSSI waters in 1998 and 1999 there is no fair comparison with the Jacqueline. On the basis of 2000 alone she passed on night setting and offal discharge but failed on streamer line on the same basis as the Jacqueline. Given that the Jacqueline should not have been recorded as failing on offal discharge, and there is a very large question mark about whether the night setting finding was justified, in my judgment Table 55 is not a reliable guide to which of the Argos Georgia and the Jacqueline had the better compliance record.
89. The position of the Argos Helena is slightly different because the comparison is over three years rather than one. Even in her case, however, Table 55 is demonstrably unreliable and I am far from persuaded that if one was able to examine the whole compliance picture hers would be found significantly better than that of the Jacqueline.
90. I was referred to the analysis conducted by Mr Parkes, which is relied on by the Defendant as a cross-check. He produced a method for calculating the ranking of the four vessels. This appears in his affidavit of 25th May 2001 (i.e. after the advice but before the direction). I am not persuaded that dividing the number of "N" responses over the total period 1998-2000 by the total number of "N" and "Y" responses over the same period overcomes the difficulty in comparing vessels that have fished over three years with those that have fished over one. In any event, it does not overcome the problem that Table 55 in my judgment provides an inadequate and unfair basis on which to determine conservation compliance.

OTHER CRITICISMS

91. There are other criticisms that are made by the Claimant that are in my view valid and go to the root of the fairness of the decision. These are:

*The Defendant gave no clear prior indication of the basis on which the selection between United Kingdom territories flagged vessels would be made. If it was to be on the basis of conservation compliance the basis should have been made clear so that attention could be drawn to the deficiencies or inaccuracies in material intended to be relied on.

*It was never drawn to the Claimant's attention that observers' reports might be relied on to produce tables of comparative compliance by vessels with conservation measures, still less that such tables would be used for decision-making in the grant of licences

*The Claimant's supposed deficiencies were never drawn to its attention as failures that required to be remedied. Indeed both the 2000 inspections suggested all was well except for plastic bands on the bait boxes.

*The Director of Fishing was unaware of the supposed deficiencies.

*The Claimant was led to believe that loyalty to the fishery was an important factor in the decision-making process.

*The Jacqueline's CCAMLR conservation record was good enough to warrant the grant of a licence in 1998, 1999 and 2000.

*The effect of the Secretary of State's advice and subsequent direction was to group licence applicants into two categories: UK territory flagged and others. Different criteria applied to each group but this was not made clear to the applicants.

*The total of 10 licences on which Dr Richardson based the decision that only two should go to United Kingdom territory flagged vessels was not set in stone. Had the Director been given the opportunity, as he should have been, to exercise his discretion in the context of advice or a direction in less specific terms, the Director would have had the flexibility to exercise his discretion taking account of all matters that he normally took into account. For example, a direction at the start of the process in terms that the number of licences granted to United Kingdom territory flagged vessels should not exceed approximately X per cent of the total number of licences granted would have been unexceptionable and would, it seems to me, have covered the wider political considerations of concern to Dr Richardson.

*Following the hearing in the Supreme Court of SGSSI the Secretary of State knew that Table 55 was unreliable and it was irrational to base his direction upon it.

92. Mr Parker submits that when the Secretary of State came to consider whether to give a direction on 7th June 2001 and, if so, what direction, he had to do so in the context of the facts as they then were. The crucial factor was that by then the TAC had been allocated. There was no more tonnage to distribute; it had all gone. He could not grant any further licences without interfering with the vested rights of other vessels. Mr Vaughan submits that this problem had already been overcome once after it was discovered that the Ibsa Quinto's application had been overlooked. But it was overcome by reallocation of unused pot fishing quotas. The same could not be done in June. Mr Vaughan pointed out that the season had over two-and-a-half months to run and a substantial proportion of the catch had still not been taken. I can see very real difficulties in altering the licences of other vessels part way through the season. Although there is a power given to the Director to alter licences under section 5(10) of the 2000 Ordinance, I do not think it was intended to be used for this purpose. Use of it in this way would leave the Director open to claims by vessels who had part of their quota taken away.
93. Were I considering this application during the currency of the fishing season, I can see a compelling argument why the court should exercise discretion to refuse relief on this ground. Now that the season has ended there is of course no question of granting such relief. Mr Parker's argument, however, goes further. He submits that the plight of the other licence holders goes to the substantive question of the lawfulness of the Director's decision.
94. This is at first sight a compelling argument but it involves looking at the position at 7th June in the context only of the situation as it then was rather than in the light of the history of what had gone before. It was because of Dr Richardson's intervention and advice that the Jacqueline was not granted a licence in the first place. The direction of 7th June cannot be considered in isolation from the remainder of the decision-making process, which in my judgment was manifestly unfair to the Claimant.
95. The FCO wished to ensure no more than two United Kingdom flagged vessels received licences. Initially it left the Director to implement his wishes without the opportunity to make a fair and rational decision in the exercise of his responsibilities under section 4 of the 2000 Ordinance. Quite apart from anything else, the Director was in no position to apply his own mind to the provisions of CCAMLR as he was required to do by section 4(5). The Supreme Court of SGSSI having quashed the Director's decision it was not, in my judgment in the circumstances that prevailed, lawful for the Secretary of State to instruct the Commissioner, in turn to instruct the Director, to make the self-same decision that had just been struck down. The answer to Mr Parker's point about all the TAC having been allocated going to the substance of the Secretary of State's decision to give a direction is, I think, this: the power to give a direction is not an unfettered power that can be exercised at any time whatever the circumstances. In the light of what had happened before it was too late to give the direction that he did. Where does that leave the position? The answer is with the judgment and order of the Chief Justice of the SGSSI.

CONCLUSION

96. The Secretary of State's entitlement under section 5 of the 1995 Order to give a direction to the Commissioner is not an absolute and unfettered power. It has to be exercised in the context of the legislation in respect of which it is given, in this case the 2000 Ordinance.
97. The Secretary of State is entitled to give directions to the Commissioner and he in turn to the Director of Fishing on issues of policy, provided he does so at a sufficiently early stage in the licensing process to enable the Director to exercise fairly the discretion that has been given to him under section 4 of the 2000 Ordinance. In the present case the Secretary of State impermissibly crossed the line from policy so that the Director of Fishing was not able fairly to exercise his discretion in accordance with the established criteria. The Secretary of State's direction was therefore unlawful.
98. The grant or refusal of fishing licences to fish in the waters of SGSSI is of such importance and significance to the applicants that the principles on which they are granted and the criteria for granting them should be clear, transparent and made known to the applicants at the time of application. There is no evidence of any practical reason why this should not be done. It was not done in this case and there was manifest unfairness in the process following the intervention of the Foreign and Commonwealth Office that led to the Jacqueline not being granted a licence.
99. Accordingly, the direction of the Secretary of State given on 7th June 2001 directing the Director not to grant a licence to fish for Toothfish during the 2001 season to any United Kingdom or United Kingdom Overseas Territories flagged vessels, other than the Argos Georgia and Argos Helena, was unlawful and will be quashed.
100. MR VAUGHAN: My Lord, I ask for an order in those terms. I do not think we need a declaration.
101. MR JUSTICE SCOTT BAKER: No.
102. MR VAUGHAN: In the light of that I ask for my costs.
103. MR PARKER: My Lord, I cannot resist the application for costs.
104. MR JUSTICE SCOTT BAKER: Yes, you can have your costs. If there are any factual errors in this, I am afraid, rather lengthy judgment, I would be grateful if my attention could be drawn to them.
105. MR VAUGHAN: My Lord, there are two points: one is I gather that it comes to you 10 calendar days after today to be looked at, I wonder could it come to counsel for us to make our comments to you on an undertaking not to show it to anyone else?
106. MR JUSTICE SCOTT BAKER: Certainly, yes.
107. MR VAUGHAN: Then give it back to you, as it were, then?
108. MR JUSTICE SCOTT BAKER: Yes, I had not realised that that is what happened.
109. MR VAUGHAN: Well, according to the shorthand-writer.
110. MR JUSTICE SCOTT BAKER: I am entirely content that both parties should be provided with an unrevised transcript of the judgment at as early a stage as possible. If you like to make any comments they can then be incorporated, if necessary, in the revised transcript.
111. MR VAUGHAN: The only point I did notice was that you did not deal with the fact that the scientific observer and the inspection report goes to the flagged state, as it were. But they have them, as it were, at the time, do you remember, under the CCAMLR instructions?
112. MR JUSTICE SCOTT BAKER: Yes.
113. MR VAUGHAN: I did not notice that you said that, it may or may not have some significance.
114. MR JUSTICE SCOTT BAKER: I dare say I did not cover every detail. It is not a disputed fact, is it?
115. MR PARKER: No, my Lord. My Lord, no doubt we will say that the judgment ought to contain other matters of fact as well.
116. MR VAUGHAN: My Lord, with regard to our damages, can we come back when you come back, as it were?
117. MR JUSTICE SCOTT BAKER: Yes.
118. MR VAUGHAN: To seek directions, it may be that we can resolve either the direction or the question of damages, ex gratia payments, or whatever my friend wants to call them.
119. MR JUSTICE SCOTT BAKER: Yes.
120. MR VAUGHAN: No doubt there will be correspondence about that.
121. MR JUSTICE SCOTT BAKER: Certainly.
122. MR VAUGHAN: If we can come back to you at the beginning of next term to deal with that?
123. MR JUSTICE SCOTT BAKER: Yes.
124. MR PARKER: My Lord, it has been a very long judgment, no criticism with the greatest of respect, and therefore it is quite difficult to digest it all in one sitting. However, I have not had a chance to take instructions, but in order to protect my position I would ask for permission to appeal. Your Lordship has made certain findings of law in respect of the nature of the power enjoyed by the Secretary of State in these circumstances and the relationship of that power to the power of the Director. In my submission that is a point of law of general importance.
125. Your Lordship has also of course gone on to say that the initial procedure where the Secretary of State intervened was manifestly unfair on the grounds that the basis of the intervention was not made known in advance, so that a claimant could make representations. Our submission on that would be that it is always known that the CCAMLR conservation measures will be taken into account and the record of compliance will be taken into account. In the circumstances it is reasonable for the Secretary of State to have regard to Table 55 and that is sufficiently accurate on our evidence to form a good basis for decision. My Lord, that is a more detailed matter, but again I will submit of sufficient public importance to engage the attention of the Court of Appeal.
126. MR JUSTICE SCOTT BAKER: Well, unless Mr Vaughan can persuade me to the contrary I am inclined to give you permission.
127. MR VAUGHAN: I would seek to persuade you, but I suspect I would not.
128. MR JUSTICE SCOTT BAKER: I do not mind confessing I found this a difficult case. It raises some quite difficult questions, not least arising out of the overlaying of the Director's direction on the ordinary decision-making process.
129. MR VAUGHAN: My Lord, yes. My Lord, I could have said that the factual analysis is so devastating that it is almost impossible for the decision to stand, whichever way you cut up the cake. My Lord, that would be my contention. I would say leave it to the Court of Appeal to decide.
130. MR JUSTICE SCOTT BAKER: I think in all the circumstances I ought to grant leave to appeal, I think there are difficult issues involved.
131. MR VAUGHAN: May we point out that time, I think, runs from today.
132. MR JUSTICE SCOTT BAKER: Yes.
133. MR VAUGHAN: I think that is one of the other reasons why it would be helpful to have the text because it runs from today. We would ask that it should run from today.
134. MR JUSTICE SCOTT BAKER: You are not going to have a revised transcript in 28 days.
135. MR PAKER: We could work on the draft.
136. MR JUSTICE SCOTT BAKER: I shall give the shorthand-writer a copy of my pretty detailed notes.
137. MR VAUGHAN: We will get back to you before you get back anyhow with our comments, and obviously to my friend.
138. MR JUSTICE SCOTT BAKER: If you want to mention it at the beginning of next term that may be the way.
139. MR VAUGHAN: It runs from today.
140. MR JUSTICE SCOTT BAKER: Yes.
141. MR VAUGHAN: Thank you very much.
142. MR JUSTICE SCOTT BAKER: Your claim for damages I suppose, apart from anything, is dependent upon whether the Secretary of State pursues an appeal, is it not?
143. MR VAUGHAN: Yes, my Lord.
144. MR JUSTICE SCOTT BAKER: You have some difficulties of law, have you not, anyway?
145. MR VAUGHAN: We always have difficulties of law. You do not get involved in fishing law unless you can accept difficulties.
146. MR JUSTICE SCOTT BAKER: I am very grateful to both of you for your helpful arguments. Thank you.
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