Legal Success for Open Seas


By Sally Campbell

Scallop dredging is the most damaging form of fishing taking place in Scotland. Yet it still has open access to over 90% of inshore waters. It is having an unsustainable impact on the life in our seas and the livelihoods that rely upon them. The heavy metal dredges used to rake up scallops scrape across and degrade marine habitats. A high percentage of all marine life damaged by dredging remains shattered and scattered on the seafloor. Divers – including commercial fishermen – have sounded the alarm, witnessing the impacts at first-hand that are hidden from view to most of us.

For the past seven years, Open Seas – with the support of people from around Scotland – has documented the environmental footprint of this fishing method. We have helped secure evidence of centuries-old marine habitats being damaged all around our coastline, including inside Marine Protected Areas. In recent years, we have written to the Scottish Government urging them to take action and fulfil their legal duties to protect these habitats – not just for the benefit of the environment, but for other fisheries and livelihoods that depend on a healthy seabed. But despite calling for change, the government has still not acted to limit the damage.
Open Seas decided they had no option but to take legal action.

The campaign

Why Open Seas think the Government’s fisheries licensing is unlawful

Ever since the Scottish Parliament passed the Marine (Scotland) Act 2010, Scottish Ministers have had a duty to ensure that its decisions conform with the National Marine Plan. One of the policies of this plan is to ensure that no use of the sea has a “significant impact on the national status of Priority Marine Features” – these are species and habitats of particular importance to Scotland (more below).

Open Seas have repeatedly shown that the national status of several key habitats has been harmed by scallop dredging specifically: in 2017 in Loch Carron, in 2018 in Gairloch, in 2020 in Brodick Bay, in 2021 in Handa Sound, in 2022 around Rum. Yet when it comes to licensing of these fisheries, government has not considered what the impacts may be – counter to their legal duties.
In the face of repeated delays and piecemeal protection, we have sought to legally challenge the Scottish Government’s ongoing licensing of environmental damage. On January 1st, the Scottish Government varied licenses in relation to scallop dredging and bottom-trawling. Open Seas lodged a petition for judicial review arguing that the decision is unlawful. You can read more about the background to the case here.

Campaign update – 24/06/2023

The legal challenge at Scotland’s highest civil court has been successful. The Court of Session has ruled that the Scottish Government’s approach to licensing scallop dredging is ‘unlawful’. Read their blog for background on this breaking news…

What should the Scottish Government do now?

It’s simple. Open Seas think the Scottish Government should put sustainability first. And so do many of us supporting Open Seas.
We all think the Government must now act in accordance with the National Marine Plan – as they are obliged to – when making fisheries licensing decisions and prevent damage to these habitats, just as they do for many other marine industries. By complying with this legal duty, we think the Scottish Government will not only protect Scotland’s precious seabed habitats for future generations, it will also safeguard inshore fisheries and the livelihoods they support.

Protection, not damage

These habitats are not just pretty places – they are the building blocks of our marine ecosystems, known to provide essential nursery and feeding grounds for fish. There is evidence that herring – a species that supported a once prolific fishery – actively choose to spawn on maerl beds – it makes no sense to licence scallop dredging in a way that damages these places. Complex marine habitats provide the foundations for the fish in our sea. More fish = sustainable fishing.

Congratulations to Open Seas and their team, especially Phil Taylor and Nick Underdown. A real success as a first step. Thank you.

Photos show Demonstration in Edinburgh, May 2023 before the Judicial Review. Images Sally Campbell

See also:

Finally, depressingly and maybe predictably, on 29 June Màiri McAllan MSP, Cabinet Secretary for Transport, Net Zero and Just Transition announced in the Scottish Parliament the Government has ditched the HPMA (Highly Protected Marine Areas) proposals, ensuring another long delay to protecting vulnerable waters. The coalition of mobile fishermen and the multinational owners of salmon farms brought pressure to bear to force its cut from any further legislation. The proposals were less than perfect, but now we must all push hard for the protection of our seas asap, otherwise this will go on for years, again, without resolution. The thought is sobering. So, join forces with Open Seas and others around our coasts to ensure better protection and adherence to the law in short time, not allowing the government stretching protection of our seas out for another 20 years.

Sally Campbell
June 2023