A JUDGE has warned ministers that she will order them to reconsider a no-trawl scheme to protect Scotland's marine environment after they said it would serve no practical purpose.

In a landmark legal judgement, the Scottish Creel Fishermen’s Federation (SCFF) won a court challenge over the "right to trawl" in Scotland's inshore waters which is expected to have a marked bearing in fishing rights across the country.

The fishermen argued in a judicial review that the decision to reject a proposed pilot no-trawl scheme in the Inner Sound off the Isle of Skye was unlawful because the Scottish Government only took into account opposition and did not properly assess the proposal - including examining benefits and the wider issues of inshore fisheries management.

The case was brought on the basis that the Scottish Government rejected the pilot because of the objections which were mainly from the trawler fishing communities instead of applying their own reasoned consideration.

One of the newest Court of Session and High Court judges Lady Poole ruled in the SCFF's favour saying that ministers had acted "unlawfully" and that it is now entitled to expect the plan is "properly" reconsidered "with an open mind".

But now the fishermen have sought an legal order forcing a review of the proposals to separate mobile and static fishing in the Inner Sound after resistance from Scottish ministers, despite Lady Poole's ruling.

And Lady Poole has told ministers that she will issue the order if the matter is not sorted out saying she was "surprised" by the ministers' position after her judgement.

In ruling last month against the Scottish ministers over the pilot decision, she said she did "not accept that it was lawful to frustrate the legitimate expectation" that it would take into account their own guidance over the wide-ranging considerations that would be taken into account in its decision. Those included the financial and enforcement implications, international and national obligations, the current quota system, and what improvements would be achieved.

READ MORE: Judge rules Scots ministers acted unlawfully over blocking no-trawler scheme as fishermen win legal challenge

At the centre of the case is the Skye pilot that came amidst mounting evidence that the use of trawled fishing gear in the inshore caused widespread ecological damage including significant declines in the diversity and size of commercial fish species.

The pilot was designed to test the environmental and economic benefits of creating ‘trawl free’ potting zones.

HeraldScotland:

Michael Upton for the fishermen said the alternative to not considering the pilot properly was that it "is now simply ignored" and rendering the previous proceeding "pointless".

"It is surprising to read that despite your ladyship's opinion... [the ministers submission] says that reassessment would serve no practical purpose. And the primary position of ministers appears therefore to be that in the light of your ladyship's opinion, they propose to do nothing.

"'Reassessment would serve not practical purpose', is precisely the argument your ladyship rejected."

Paul Reid, for the Scottish ministers said that "on reflection" saying reconsideration would serve no practical purpose "was perhaps not the happiest form of words".

He said there needed to be clarity on exactly what they were required to do, indicating that any reconsideration would need to be assessed through the lens of 2021, and against the bew 2020-2030 future fisheries management strategy.

Lady Poole called on both sides to reach an agreement over the way forward adding that she would make " but not today a positive order ordering [ministers] to take action.

"If it is not capable of agreement I will simply make the order and you will have to proceed the best you can," she said.

"I just think in matters like this it is much better if parties can reach a resolution on the way forward.

READ MORE: Fishermen mount court challenge over ministers' 'unlawful right to trawl" in Scots waters

"I should make it absolutely clear to the [ministers] because they raised the issue that the order would serve no practical purpose that I am minded to make an order.... This is an opportunity for Scottish ministers to seek to agree the parameters of an order in a way that is workable and manageable for both the the petitioners and the respondents."

Fishing during the Covid Lockdown off the Isle of Skye

Before the enactment of the Inshore Fishing (Scotland) Act in 1984, there was, since 1889, a ban of bottom trawling within three miles of the coast providing “coastal fringe of largely undisturbed marine life”.

The prohibition was removed largely because trawling had led to an increased depletion of off-shore stocks and the mobile fishing sector - large trawlers operating in the area – wished to move inshore.

Mobile fishing, through trawling and dredging, can often come into conflict with static methods.

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Creel fishermen - who lay their pots on the seabed before returning days later to empty them - say thousands of pounds worth of gear can be lost when a fishing boat drags its nets through an area.

And the SCFF said that since the ban there has been a significant and growing body of evidence showing that the decision to open up the inshore to trawling has been disastrous both environmentally and economically.