Fishing dispute aired in London

THE fishing licensing dispute went to the appeal court in London yesterday but could yet be referred to the European Court of Justice in Luxembourg. The Judicial Committee of the Privy Council in Downing Street heard that the five sitting Law Lords, headed by Lord Scott, has the power to send

the matter there.

EU community law issues and possible inconsistencies have been mooted but it is understood that neither parties want the long-running dispute to go down that path as it could take years to resolve.

If EU law is deemed to be determinate in this case and it does go to Europe, it would then have to be referred back to the Privy Council for a final decision.

The States' decision not to let Jersey and UK commercial fishermen work in the island's three to 12-mile limit without a licence was heavily scrutinised in London yesterday. The decision was described as invalid, inconsistent and exceeding States' powers.

James Dingemans, QC, representing the appellants - the Jersey Fishermen's Association and fishing companies from south-west England - submitted that:

* the States of Guernsey has no right or power to legislate over the whole of the 12-mile limit

* Guernsey's Court of Appeal mis-applied the principle of the doctrine of colonial extraterritorial incompetence

* the 2003 Sea Fish Licensing (Guernsey) Ordinance, as delegated, was not passed within the powers of the 1994 law for a community provision and was therefore unlawful and expedient

* the 2003 Ordinance was beyond any customary law powers to make ordinances

* it infringes article 28 of the EC Treaty.

In a lengthy address, he cited the dispute's history and assessed sovereignty, constitutional and European issues.

The appellants' counsel claimed that the States did not have the power to enact a licensing scheme within the Bailiwick of Guernsey without UK Government approval or a projet de loi.

'This was not implemented in a non-discriminatory manner,' he said.

It did not allow for historic rights accrued to Jersey and UK fishermen, which are part of Common Fisheries Policy, it was claimed.

These are not community waters and this is not a community conservation measure, he argued.

The licensing scheme had treated Guernsey, Jersey, UK and French fishermen differently.

'It is not open to the States of Guernsey to legislate on a unilateral basis,' he said.

'Guernsey had no right to erect the scheme that it had.'

It was suggested that incorrect legal advice was given that Guernsey was obliged to operate a fishing licensing scheme under European rules.

Mr Dingemans will sum up the appellants' case this morning.

David Anderson, QC, will then present the respondents' case on behalf of the States of Guernsey.