Wednesday, 30 September 2020

The Mooring System at Carradale North

In many ways Storm Ellen failed to live up to her promise. Wind strengths along the inner West coast proved less strong than had been predicted and the only major casualty was the disastrous failure of the mooring system at Carradale North, which resulted in this massive installation of ten large cages coming adrift.
The initial statement, issued by MOWI that day, suggested that the anchors had become detached from the seabed, see here:
‘On August 20, 2020, Mowi’s salmon farm at Carradale North, consisting of 10 circular net pens containing 550,000 salmon (@~4.2kgs), shifted position after its seabed anchors became dislodged during Storm Ellen that has hit the UK and Ireland. The company’s priority at this time is to secure the fish cages in place until Storm Ellen subsides, and to safeguard staff, contractors and fish stock.
‘The company has informed Marine Scotland of the event. A final update will be provided after recovery is complete’.
For the anchors to have become dislodged was perhaps a reasonable deduction in the immediate aftermath of the event, but would have raised questions about the adequacy of the design. Since the arrival of the North Sea oil sector considerable research has gone into the design of anchors and systems for the most testing of conditions. This has resulted in enormous spin-off for other sectors, from shipping to leisure boating. There is no publicly available information about the type or size of the anchors in use at Carradale North, nor any relative specifications or calculations, but for anchors simply to fail would raise considerable doubts about system design.
It turned out that this information was simply wrong, according to the statement issued by MOWI on 26 August. I have omitted the parts irrelevant to the mooring system.
‘Mowi Scotland’s salmon farm at Carradale North, consisting of 10 circular net pens containing 550,700 salmon (@~4.2kgs), shifted its position after becoming detached from its seabed anchors during Storm Ellen and strong tides in Kilbrannan Sound on August 20th, 2020.
‘Following thorough inspection by dive teams, the root cause of the incident appears to be breakage of mooring ropes that attach to the main system seabed anchors. The farm was installed five years ago according to the Marine Scotland A Technical Standard for Scottish Finfish Aquaculture, and the infrastructure inspected three months ago. The rope type is marine grade, 4.8cm in diameter with a break strength of 89.5 ton – roughly twice the maximum strength required for its application (ranging from 33t to 51t). The rope has been sent to third-party testing facilities in Aberdeen, with further investigation to follow….’
It would appear from the technical standard referred to in the second statement that in order to instal their ten cages at North Carradale MOWI would have required to commission, in sequence, a full site survey, covering the seabed and including analysis of tidal flow directions, strengths and heights, then a design based on the that data, followed by ordering and installing equipment, consisting of anchors and associated chains and/or ropes.

This release was accompanied by the image below, which is copied with the caption added by MOWI.

On the assumption that MOWI’s photograph is authentic one is tempted to suggest that the person who tested the system three months earlier should have gone to Specsavers!
As anyone with the slightest experience will confirm, all mooring systems degrade from the moment they are placed in the sea. Traditionally they have almost universally been constructed of galvanised steel, with a heavy anchor or anchors connected to a section of heavy chain to absorb the heave of the waves and lighter gauge riser chain to the surface. The links abrade against each other, removing the galvanising and allowing the metal to rust where sufficient oxygen is present. For this reason seasonal moorings are sunk when out of use.
It seems that until recently the aquaculture industry used very similar systems. Because of the year round use one imagines that inspections and replacements of degraded gear would have been ongoing. This presumably explains why in recent years the industry has moved to the use of synthetic rope systems, as can be seen from the technical standard.
It seems that the most common materials in use are nylon and polypropylene. Each has different properties, but the principal causes of degradation in use are likely to be:
Chemical -
Nylon readily absorbs water, to between 1.5% and 3.5%, polypropylene is much less liable to.
Ultra violet light degradation may have an impact
Anti fouling treatments ditto, depending on the chemicals used
Physical -
Impact from vessels, flowing debris etc is possible, but more likely is the wearing down of fibres as they constantly move against each other inside the strands.
I have asked the Scottish Government under FOI to share what information they are holding and will publish the results in due course.
Given the statement by MOWI that the ropes would have been subject to around half of their designed breaking strain when they actually broke something has gone very seriously wrong. Logically there can only be two explanations, either the ropes supplied have been woefully inadequate and there was nothing wrong with the inspection, or they were fine when supplied, have since degraded and it hasn’t been noticed.

Friday, 18 September 2020

Regulation of Discharges from Wellboats

On Tuesday morning the Scottish Parliament's ECCLR, environmental, committee is being asked to approve a new government order transferring regulation of discharges from wellboats from Marine Scotland to SEPA. The stated reason is to simplify matters by reducing consents to just one.

In practice just now, wellboats are carrying on their activities basically unregulated, moving along the coast applying treatments ranging from dosing salmon with chemicals to subjecting them to hot water baths as a "kill or cure" way of ridding them of sea lice.
Mark Ruskell will be speaking at the committee and I've annexed some notes that I've prepared, as they should be of general interest.
Well Boat Discharge briefing Notes for Mark Ruskell
I am a former solicitor and live beside Loch na Cille at the head of Loch Melfort, part of a loch system comprising in addition Loch Shuna and the Sounds of Shuna and Seil. I have long argued that the system deserves to be treated as a single sea loch, as it shows all the features, glacial cills, restricted tidal flushing etc. Despite this Marine Scotland and the planning system allow only Loch Melfort the protection afforded to a sea loch and as a result there are only two “farms” in our stretch, consented historically and small in current terms, Eilean Coltair CAR/L/1000197 and Kames Bay CAR/L/1000237. These belong to Kames Fish Farming Limited, whose base and the owner’s house are also here.
The wider sea loch contains another five, much larger “farms”, Ardmaddy CAR/L/1010472 (currently not in use), Port na Cro CAR/L/1000810, South West Shuna CAR/L/1025496, Bagh Dail nan Ceann North and South CAR/L/1004226 and Shuna Castle Bay CAR/L/1000801. Three more are considered in planning terms to impact on the area in terms of environmental management, Ardifuir CAR/L/1021927, Port nan Seannag (Lunga) CAR/L/1000811 and Bagh Lachlainn CAR/L/1025495. These are all operated by either Kames or MOWI. It’s difficult to tell, because the two companies operate in a loose partnership, the former promoting the “local family owned business” idea to obtain consents and then turning the site over to the latter.
Much of my life over the last ten years has been devoted to trying to limit the proven damage this massive overload continues to cause, without success so far.
Wellboat Regulation
Wellboats became an issue quite recently, when they started to appear in numbers. Mr Ruskell will of course know that the present regime consists of licences granted by Marine Scotland. The transfer to SEPA has been in the wind for some time and was promised within the “first 6 months of 2020” in response to my request (F0191380). The same response included:
“Will licences be issued on a site basis, or to individual wellboats/owners/charterers? Will these be CAR licences or licences under some new system? Please advise where a list of licences can be accessed online.
We confirm that when SEPA becomes the regulatory authority we envisage incorporating the discharge of wellboats into each sites existing CAR (Controlled Activities (Scotland) Regulations 2011) licence.
These will be available on our Public Register. SEPA is moving towards an online Public Register.”
Current Position
It can be seen from the Marine Scotland webpage
Marine Scotland Applicationsthat there are currently six or seven applications from companies trying to beat the deadline. Don Staniford’s update from 22 June confirms that consents will continue to be valid. Appendix A to the parliamentary briefing shows that there are currently 53. (The 2013 total is fascinating, 186!)
I have not seen the draft order, but Terry A’Hearn’s comment suggests that no changes of substance are proposed and the matter is being presented as a simplification with no consequences.
Suggested Concerns
I am very worried that the present system, to be carried over, allows for licences on a site by site basis. On the face of things this has the merit of simplicity. One would assume that the wellboat would arrive on site, carry out the necessary procedure, discharge the effluent immediately and then depart. In theory this would allow officials from SEPA to turn up and assess any remaining residues on the seabed for environmental effects. In practice that may not be what happens.
On the West coast I and other residents are now seeing wellboats that are massive in size, travelling considerable distances from site to site and carrying out various procedures. Individuals belonging to the numerous community bodies who make up the Coastal Communities Network observe movements on the Marine Traffic website and share information about this. My immediate neighbours here frequently see a substantial wellboat at Kames Bay, just a couple of miles from the head of the loch, discharging residues that must have come from treatments carried out at the some of the other large sites referenced in my introduction.
Any regulatory system must be based on the assumption that there will be operators who try to cheat, but the present system makes it just too easy. Of course, local residents have absolutely no way of knowing what chemicals or other waste material may be within those discharges, but the fact that they take place far from the sites they are licensed to raises concerns. A standard hydrolicer treatment should, in principle, yield only dirty water, the corpses of fish that haven’t survived and sea lice, alive and dead. But treatments are moving on and, for example, details of the toxins involving the new Benchmark procedure are being withheld. The response to my FOI continued:
“Feedback had been sought from the third party who confirmed that disclosure of information would cause substantial prejudice to their commercial interests. We recognise that Regulation 10(2)(b) requires SEPA to apply a presumption favour of disclosure. In the specific circumstances of this request, SEPA considers that the release of the correspondence and documentation would cause a substantial prejudice to the commercial undertaking and economic interest. SEPA therefore contends that the public interest in the release of the information is outweighed by the public interest in maintaining the exception under the terms of Regulation 10(5)(e) of the EIRs”
Possible solutions might be to require waste to be discharged at the particular site, but then a discharge far out in deep water might be better, or to attempt licensing of vessels rather than sites, but that would involve a totally new system.
In short, there are more issues here than are likely to be explored, let alone resolved, on 22 September.

Monday, 14 September 2020

Shetland and Orkney Independence

The other day the Daily Express ran a story entitled  “Sturgeon’s Nightmare” that the unwary might have thought referred to a massive outbreak of Coronavirus, but on closer inspection turned out to be about Orkney wanting to join Shetland in seeking independence. This followed reports that Shetland Islands Council had voted 18 to 2 to explore adopting a status similar to being a UK Crown Dependency. The leader of Orkney Council acknowledged, we were told, that his island would seek a similar solution. 

I hadn’t come across the author, Richard Percival, before and googled him. He turned out not to be the professor at Sheffield University, but a freelance fellow based in Southampton, who has at the age of twentyfour gathered a BA (Hons) in journalism and a journalism diploma, his specialisms including “Nightlife”. I’m sure there's a lot of the latter in the Northern Islands, if you know where to find it. I wouldn’t normally mention a journalist’s qualifications, but regarding something as intrinsically complicated as island politics a little depth of local knowledge would add credibility. This, of course, damns me too, so I will confine this piece to “chiels that winna ding”.

First, regarding the demographics. Each island has a population of about 23,000, so together they would scarcely be viable with total independence. Think specialist hospital treatments etc, currently all flown to the mainland. 

To get some idea of country sizes, the EU’s current twenty seven break down into a group of five biggies over 40 million, the next ten down to 7 million, five “Scotland sized” down to Croatia’s 4 million, then four smallies bordering Russia down to Estonia at 1.3 million and finally three tiddlers down to Malta, with just under 0.5 million. Orkney and Shetland combined would be one tenth of Malta. Remember that “too wee” jibe?

Second, oil, Scotland’s curse. Without it we’d have been free decades ago, Thatcher couldn’t have funded the unemployment and destruction of industry North and South; I could go on. Would it belong to an independent Northern Isles? In a word, No. There’s an authoritative article in the European Journal of International Law, accessible by the link below.

The author considers the position in the event of Shetland and/or Orkney deciding to secede from Scotland post independence or, more likely, to decide to belong to rUK. While not expressly discussed, the same logic applies to their linking up with, say, Norway.

International law runs on precedent and the  matter has already been settled. Islands get special treatment. They don’t get half the ocean between them and the next land, rather the choices are between six and twelve miles from the coast. The case of the Channel Islands went to arbitration, at which France argued for six miles and lost. The best that could be hoped for would be the same, twelve miles again. 

That all assumes that the good folk of Orkney and Shetland would trust a future rUK, quite possibly consisting simply of England, not doing another Thatcher with “their” oil.

Third, politics. As noted above, I don’t have local knowledge, so offer just some very basic facts. 

Orkney and Shetland each have 23,000 residents and together form one Westminster constituency, with 34,000 registered electors, roughly three quarters. In December 2019 two thirds of them voted and the results were:

Lib Dem 45%, SNP 34%, Con 10%, Lab 7%, Brexit 4%.

Despite suspicions that Shetlanders may be closer to the Vikings in sentiment than Orcadians both islands voted pretty much the same in the 2016 Holyrood elections. Each island supported the Lib Dems 67% against the SNP’s 23%, the others sharing 10% among them. It looks as if of the 20% that later left the Lib Dems half went to the SNP.

That looks a hard nut to crack, but it represents views based on the current situation and perhaps also on misapprehensions about oil. And 79/90% for pro EU parties! Faced with a stark choice of belonging to Scotland or to someone else, a post Brexit Little England might not be too appealing to those remaining Lib Dems. 

European Journal of International Law

Wednesday, 9 September 2020

Suddenly it all seems relevant!

I was very lucky to study Jurisprudence for three years under Professor Sandy Anton, an international lawyer of terrifying intelligence, then to be sent off to study at the Hague Academy of International Law, as a result of which I am entitled, under that law, to describe myself as an “Attender” but not an “Alumnus”, having decided not to take the exam. Thereafter I was appointed to teach the subject, getting the vacancy left when John Smith went into politics. For the next thirteen years my working life was brightened up with twice weekly tutorial discussions and annual conferences hosted by the Association for Social and Legal Philosophy. I’m no expert, but have retained a lifelong interest and studied events over the decades since. The period runs from the United Kingdom’s entry into what became the EU to the current b├╣rach.

Those discussions often concerned the conflict between the English doctrine of the Sovereignty of the Westminster Parliament and the consequences of becoming part of an international club. For the benefit of anyone coming to this territory for the first time I will offer a quick trot over the course.
I described the doctrine as English because Scotland never developed such an absolutist theory at any time from first becoming a country to joining the Union. The King was the King of the Scots and ruled with their presumed consent, see, for example, the Declaration of Arbroath. By contrast English legal theory went down an absolutist path, which intensified when empire-building supplanted trade as the engine of economic growth.
In the late Victorian era of gunboat diplomacy this international thuggery, now termed Sovereignty, came to be expressed in legal terms by writers such as Albert V Dicey and that forms the basis for the constitutional position to this day. I nearly wrote “settlement”, but the matter has never been up for negotiation. As currently understood, the doctrine means that no Westminster Parliament can ever bind its successors, so in practical terms anything written in an Act is only valid until Parliament decides to change it. No window dressing, no “vow” by a group of leading cross party politicians can mean anything, it’s all up for grabs. It’s like playing cards with a fellow who has his pistol on the table.
When the Westminster Parliament enacts something, such as “The Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom’s constitutional arrangements” this is legally, in terms of the United Kingdom “constitution” complete rubbish. That responsible people, such as Professor Tomkins, a senior legal academic moonlighting as a politician, were involved in promoting this sort of deception is beneath contempt. It was always clear that the so-called United Kingdom Supreme Court, in reality only a Westminster creation, would rule the way it has done recently.
So, that’s the domestic position, what’s the position in International Law? Forty or so years ago academics were very exercised at the apparent conflict between Westminster Sovereignty and EU law and expected to see disputes and litigations emerging. The issue centred on the fact that while almost all the other member states had written constitutions, often imposed by the Allies, expressly making national law subservient to international law, the UK didn’t. The reason why problems haven’t arisen does not mean that some magic solution was found; it’s simply down to the fact that both sides recognised the manifest benefits, both ways, of UK membership. During the most heated rhetoric of the Thatcher period this always remained the underlying reality.
That reality remains unchanged by Brexit. Even the neo-fascist fools who grabbed power last December no longer pretend that people will be better off. A huge price is to be paid, almost certainly by the poorest in society, for a trip into an English nationalist fantasy world, where people have blue passports that they can’t use and little else.
This week we have seen, certainly for the first time in my adult lifetime, a government minister openly and expressly stating that the United Kingdom intends to violate an international treaty and, to top that, a treaty negotiated, signed and approved by the politicians who are currently in power. The sheer enormity of this would have sent electric shocks through those academics at the conferences I mentioned. As Lord Kerr and Lady Macintosh and others were saying yesterday in the House of Lords, this puts the United Kingdom in the position of a rogue state.
But has the position in terms of International Law changed? Tragically I think not, but I’d be delighted to be proved wrong. Compliance with treaty obligations is still very much a matter of mutual recognition of self interest. There is no international super state police force. If a State breaks the rules others will react at levels rising from expressions of disapproval, through breaking off relations and so on. The damage done this week puts the United Kingdom, jurisprudentially, in the same place as North Korea and the world leader in these matters, the United States. The lesson is that rulers can get away with breaking the rules if either they don’t care about their people or they’re big enough. I hate to think which category the United Kingdom belongs to.
Over the remainder of this year we will see the consequences of the current insanity working through. It’s now virtually certain that there will be a “no-deal”. Specifically regarding Northern Ireland it’s likely that Westminster will not take steps to put in place the customs officials and checks required in order to respect the Withdrawal Agreement. There will then be a challenge to the Republic of Ireland as an EU member state to put up a hard border. That is no doubt the calculation of Johnson and friends, but is it really likely that they would do so? My guess is that they will decide to put up with a lot of smuggling in the short term to avoid a return to the Troubles, while mustering all forms of international pressure and support to bring the United Kingdom to heel. Regardless of who becomes President in November the Irish lobby in the States will be very active in this. And don’t forget that the Irish have the right in terms of the Withdrawal Agreement to a referendum on unity.

Monday, 7 September 2020

Fisheries - the Battle is resumed!

Tomorrow will see the fisheries discussion between “Lord” Frost and Monsieur Barnier resuming, with the two sides still as apart as ever. In anticipation of this two of the fishing industry bodies have put out the following, which I quote in full:

Elspeth Macdonald and Barrie Deas, chief executives of the Scottish Fishermen’s Federation (SFF) and National Federation of Fishermen’s Organisations (NFFO) respectively, said:
“For the fishing industry in the UK, leaving the Common Fisheries Policy has always been about redressing a fundamental issue: the woefully unfair allocation of quota shares in our waters, where the EU fleet has an unfettered right of access to the UK’s rich fishing grounds and fish five times more in UK waters than we fish in theirs.
“The only satisfactory means of ensuring that this is achieved is for the UK, as a sovereign coastal state, to maintain full control over access to our waters.
“That does not mean denying EU vessels access to fish in the UK Exclusive Economic Zone. Rather, that such access would be negotiated annually – as is the norm for the EU and Norway and other non-EU fishing nations.
“Under international law, this will be the default position if a Fisheries Agreement cannot be reached.
“Evidently, it would be preferable if the right deal could be agreed, meeting the industry’s objective of control of access to fish in the UK EEZ and fairer quota shares based on zonal attachment, but if an acceptable deal cannot be reached then the catching sector would prefer these issues to be addressed through the annual negotiations process. This is in line with the government’s negotiating position, which we fully support.
“Ultimately, it is up to the EU which of the two routes it wishes to take towards the UK becoming a coastal state – through a stable framework agreement that respects UK sovereignty and follows similar arrangements that the EU has with other coastal states in the north-east Atlantic, or via a more uncertain route for the EU where everything is done through annual negotiations with no framework agreement in place.”

The statement is important for what it misses out, as much as for what is included. There is no mention whatever of the Scottish non-quota fleet, which includes perhaps a majority of vessels on the West coast, many of whom belong to other organisations, thus no reference to all the problems of validation and certification that arise, for example, if someone here wishes to continue exporting live prawns or lobsters to the EU.

Notably there is no mention of how the quota fleet is going to sell into Europe, where much of the product goes. This underlines what I have suggested before, the possibility that they have this sorted already with catches being landed directly from the supertrawlers concerned into ports within the EU.

Friday, 4 September 2020

Fish Quota yet again!

I haven't written about fishing quota for a while, because basically nothing has been happening regarding the political hot potato of fishing rights after 31 December 2020.

The last round ended with the continuing failure of the UK negotiator "Lord" Frost to disclose the terms that he wishes to secure. Monsieur Barnier ended the round by pointing out that while the UK would have sovereignty over a section of the seabed, this would not confer ownership of the fish swimming through the water column above it. He is absolutely correct in terms of law, domestic Scots, English or, for that matter, French law or International law. Wild fish, fera natura, belong to nobody until they're caught.
I have repeatedly stated before that successive UK Governments, in pursuit of neo-liberal agendas, have allowed both the sale of fishing quota to non-nationals and the ownership of fishing vessels by non UK owners, often corporations whose owners are in turn based outside the UK or the EU, frequently in tax havens. Long ago the position was reached in terms of which it cost more to buy quota than to buy the boat to catch it. Quota is also used as security for the loans taken out to buy it, or indeed to buy the vessel.
This means that quota is private property and entitled to protection under the ECHR, with no dispossession without compensation.
So, where does this all end up if, as seems likely, 31 December passes with no deal? The existing fishers will want to fish in the existing vessels, using the existing quota and selling to the existing markets. My guess is that they will simply do so and that it will be foolish in the extreme for the UK Government, whoever is in charge, to try to stop that. The large Scottish and English vessels that catch quota stocks may need to land their catches in mainland EU, so it won't exactly be business as usual on the UK side. Many of these owners, in contrast to much of the non-quota fleet, were great cheerleaders for Brexit. It's very likely that they knew their stuff!

Tuesday, 1 September 2020

A wonderful new report praising the industry!

 The timing of the release of the latest, totally independent report from the consultants Ekosgen commissioned by Marine Scotland is almost as odd as the terms of the report itself. In the accompanying release we find the following:

"The aquaculture industry contributes to the long-term viability of many communities, according to a new report.
Commissioned by Marine Scotland, the report found the sector provides year-round, well-paid jobs and supports economic growth in rural, coastal and island areas."
Nowhere in the report is there any attempt to assess the long term damage that open sea cage aquaculture does to the marine environment. It is now known that the process is simply inconsistent with the survival of other target species that might support other parts of our fragile coastal micro-economies, such as lobsters and crabs, which being crustaceans are killed off just as effectively as are the sea lice the industry is determined to eradicate. Oysters and mussels cannot be marketed from areas affected by various types of the algal growth that is triggered by excess nutrients from fish farms.
There is also a failure to consider other, non-harmful ways of developing local businesses. Tourism and leisure are by far the biggest private sector employers along the coast, yet bays are out of bounds to kayakers, dolphins and porpoise are scared off, sea trout are virtually absent due to sea lice and viral diseases.
It's noticeable that in a long list of "consultees" there isn't a single environmental group, or any citizen or community one, but of course fish farming companies and suppliers to them feature pretty largely.
Re the timing, we are told that the report came out in January. The press release contains encouraging words from Julie Hesketh-Laird, who resigned as a paid promoter of aquaculture many months ago and has been virtually silent since. A Non-disclosure agreement, perhaps?
Covid is blamed for the delay, just as it has been used by fish farmers to obtain government support and exemption from regulation, but is that right? There was at least a month to publish before lockdown and if any reviews or approvals hadn't been done by then wouldn't this have been possible digitally? Does it have anything to do with certain ministers standing down?
The timing is bad, for another reason. Just as Norwegian companies get this endorsement from the Scottish Government, back home the industry launches the farm of the future, several years in planning. The article makes convincing reading, perhaps a solution to moving farms offshore without the whole operation ripping apart in strong winds, like we saw a week ago.
On the face of things this new development is a step forward. There should be a reduced dependency on antibiotics and pesticides. The world's seas will still be treated as gigantic waste disposal facilities and the process won't please anyone bothered about animal cruelty!

Read about the new system here: