To report the current position with legal action challenging the Fishery Order

2.1 The CEO expects the appeal will be heard in early November in Cardiff. He is also pleased to be able to retain the same legal team for the appeal which was successful in March.

2.2 A skeleton argument for the appellants has been served on the defence in preparation for the appeal hearing. The defence parties, excepting WAG, have recently met with the legal team and discussed the skeleton argument. A response will have to be served by the defence legal team on the appellants in late October, 2 weeks before the appeal hearing. The Committee’s legal team also advised on the overall strategy to be adopted by the defence to resist the appeal. Details of the skeleton argument and the defence strategy are legally privileged until after the hearing therefore they can not be discussed in Committee at this stage. If questions arise on which a Committee view is required, these will be tabled on 12 September and items will be discussed in a closed session.

2.3 To avoid risk of disclosure of the legal documents, which could prejudice the appeal outcome, the CEO proposes that the papers should not be made available to the full Committee before the hearing. In order to keep the Committee up to date with developments a report will be made available to the Chairman’s working party on 24 October 2008.

3.1 An unfortunate consequence of this case is that the Crown Estate is continuing to withhold a full consent for applications for Fishery Orders. The Crown Estate has given a terminable consent to all applications for new and renewal Orders, including a clause purporting to enable them to withdraw their consent with 6 months’ notice. Defra do not consider this to be a legal consent under the terms of the 1967 Shellfish Act and are continuing negotiations with the Crown Estate to try and find a solution.

3.2 The Orders in this District affected by this policy are the Conwy, Menai Strait West and Morecambe Bay Fishery Orders. On request from the CEO, MPs in the Morecambe Bay area have written to the Crown Estate again to ask that they review this policy so that this Order, which is essential for the sustainable management of shellfisheries and the safety of fisherman, can be put in place as soon as possible. An example reply from the crown Estate received by a number of Morecambe bay MPs is attached at Annex A.

3.3 John Hutton MP (Barrow and Furness) requested information to write further. The CEO has suggested he raises a number of issues arising from the letter to Geraldine Smith MP. Firstly an explanation of paragraph 2 of Roger Bright’s letter which is unclear; secondly, some details of solutions mentioned in Paragraph 3 which they would accept, and thirdly, an explanation of why the Crown Estate has refused full consents for both Regulating Orders and Several Orders. The Crown Estate should note that if they wish to protect claimed landowner rights to development on Fishery Order areas, Regulating Orders are not protected from development as are Several Orders and it is not clear why consent for Regulating orders is being withheld by the Crown Estate.

4.1 This case dates back to early 2005 when data relating to the annual production of mussels from each lay was requested from the Committee. Initially the request related to the production from lay 4 on which the marina would be built and was later extended to include all the lays within the Menai East Fishery Order over a 10 year period from 1995-2005.

4.2 This data is obtained from the mussel culture companies each year in order to complete the annual report of the Grantee of the Order required by the WAG as Grantor of the Order. Up to the year 2000, the data was not retained and indeed the record of grantee reports prior to 2000 is incomplete in the Committee’s files. From 2000 to 2005, the data was retained however, the previous CEO held that this data was commercially confidential and exempt from disclosure under the FOI.

4.3 The present CEO inherited this case on coming into post in May 2005 and agreed that the Committee should seek legal advice regarding the status of this data. He was advised that the data was exempt from disclosure and that disclosure could place the Committee under threat of legal action for compensation and breach of confidence.

4.4 An Information Tribunal under the FOI has now ruled that the data is not exempt from disclosure and the data has been sent to the applicant. The full judgement is a background paper to this report available from the Clerk.

4.5 The costs of the case were paid from the account of the Menai Strait East Fishery Order. No burden was placed on the Committee’s accounts.