Fish law used in bad faith claim

ALLEGATIONS of bad faith have been made in the fishery licensing dispute. The Guernsey Court of Appeal heard yesterday from Advocate Gordon Dawes, on behalf of the Jersey Fishermen's Association and English companies.

In February, they won their claim in the Royal Court that the Sea Fish Licensing (Guernsey) Ordinance was unlawful ' a decision now being challenged by the States of Guernsey.

Pressed several times by Richard Southwell, QC, Advocate Dawes expanded on his bad faith argument.

'There's a statutory regime, an express route to be taken, and that route had been followed but reaches a conclusion where the British minister is saying he will not make any order unless you do these things,' he said, referring to a stalemate over getting the UK to legislate on the fishery.

'What happened next was to skirt around for a solution and, quite contrary to a previous policy letter in 1996, where it said expressly there's no jurisdiction to do this, to purport to change their minds in that fundamental way.'

He added that the 1994 law was then used in a way it had never been before to circumvent the expression or wish of the minister.

Advocate Dawes pointed to comments made by then Sea Fisheries Committee chairman Lyndon Trott in the debate on the 2003 ordinance, during which he said that the licensing was really a reaction to the Bay of Granville fishing agreement between Jersey and France.

'That's not proper purpose ' that's bad faith.'

Representing the States of Guernsey, Crown Advocate Richard McMahon strongly denied the bad faith argument, one of the most serious allegations that can be made in court, saying it was misplaced.

Advocate Dawes argued that the 2003 ordinance would ultimately fail in its current form.

Advocate Dawes said the States acted beyond its powers using an ordinance to legislate in the 12-mile zone, referring to a 1947 report which outlined what an ordinance could do.

'The domestic ordinance-making power is very limited indeed. To suddenly change that would have no basis in the history of the legislative competence of this island,' he claimed.

Advocate Dawes added that it was a question of degree as to when an ordinance could be used instead of a projet de loi, which requires Royal assent.

But Mr Southwell said it was very doubtful that what was said in 1947 was true today and the law in Guernsey had moved on.

Advocate Dawes highlighted other problems, such as the policy letter for the 2003 ordinance stating it was a legal requirement to bring in the licensing, when it was not.

He said there was no implementation argument because, in effect, the ordinance picked out only the licensing and prohibition aspects of the EC's Common Fisheries Policy.

Advocate Dawes also raised arguments about territorial competence, saying water beyond the three-mile zone is British fishery limits.

Both advocates were asked to make written submissions expanding on their arguments before a judgement can be given.

No date has been set for the resumption of the hearing.