The Right to Privacy

The image shows Gustav Magnar Witzoe, the owner of a large part of Scottish Sea Farms and thus indirectly the owner of several million salmon living in cages on the West Coast, although strangely they do not appear among the hundreds of images posted by him on his Instagram account, which has 118,000 followers. I am entirely free to publish it without fear, because it’s been published with his consent and there is no conceivable basis for any valid legal complaint, let alone court action.

Similarly, anyone posting a selfie online should be aware that if the image is shared by someone else, there is absolutely nothing that the poster can do about that. The very act of publishing is making something public, the clue is in the name.

This is topical, because this week the well known anti fish farm campaigner Don Staniford has received an extraordinary request from Mr Witzoe’s company to remove from his blog images of three individuals posted by themselves on sites including Linkedin, a site that publishes information, including photographs, of people in the business community and has nothing whatsoever to do with Scottish Sea Farms. Two of them are no longer employees.

The company has threatened to report Don to the “Information Commissioner’s Office”. When we last looked, the Commissioner, a nice fellow called Ken Macdonald, had his hands full handling complaints about Freedom of Information requests to local authorities and other public sector bodies and his statutory responsibilities did not extend to the activities of anti fish farm campaigners. It seems unlikely that he has decided to follow Police Scotland in becoming an unpaid back up act for aquaculture.

There has been a tendency recently for fish farm companies to claim rights that they simply do not have. I wrote a few months ago about their ridiculous quoting of a statute that was introduced to stop unauthorised raves on farm land in attempts to prevent activists taking photographs of diseased and dying fish. The lesson in this is that one should read the Act before waving it in someone’s face.

Data Protection legislation has also been used recently to threaten someone taking drone footage of the disgusting scenes when salmon are processed by thermolicing, a process whereby mature fish are pumped via plastic tubes into a bath of warm water in order to remove the sea lice that are literally eating them alive. This is a blatant attempt to suppress worried citizens doing what Marine Scotland, the Fish Health Inspectorate and SEPA should be doing on our behalf, but don’t.

So, what is the position regarding the taking and publication of images? What if a third party takes an image without a person’s consent and wishes to publish it?

Under Article 8 of the European Convention on Human Rights we DO have the right to protect our image, unless we have expressly or impliedly agreed to its being published. Here is an extract from the Guide published by the European Court:

“Right to one’s image and photographs; the publishing of photos, images, and articles

Regarding photographs, the Court has stated that a person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one’s image is thus one of the essential components of personal development (López Ribalda and Others v. Spain [GC], §§ 87-91 and the references cited therein). Although freedom of expression includes the publication of photographs, the Court has nonetheless found that the protection of the rights and reputation of others takes on particular importance in this area, as photographs may contain very personal or even intimate information about an individual or his or her family (Von Hannover v. Germany (no. 2) [GC], § 103). Even a neutral photograph accompanying a story portraying an individual in a negative light constitutes a serious intrusion into the private life of a person who does not seek publicity (Rodina v. Lat- via, § 131). The Court has articulated the key factors to consider when balancing the right to reputation under Article 8 and freedom of expression under Article 10 as follows: contribution to a debate of general interest; how well known is the person concerned and what is the subject of the report?; prior conduct of the person concerned; content, form and consequences of the publication; circumstances in which the photos were taken; and severity of the sanction imposed (ibid., §§ 108-113; Axel Springer AG v. Germany [GC], §§ 89-95; Couderc and Hachette Filipacchi Associés v. France [GC], §§ 90-93; Rodina v. Latvia, § 104).”

As usual with European law the statement is very principled and explains the reasons why an image is protected. It is clear that anything we publish ourselves isn’t, unless there is added a negative story. It’s also clear that an image taken from a distance far enough for individuals not to be recognisable, say the drone scene referred to above, would not give ground for action. In any event, such action would need to be taken by the subject of the photograph, not by his employer.

Just be careful, everyone, make sure faces aren’t identifiable and keep safe!

                                                             Don's Blog

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.

Conclusions

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.

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

Introduction

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.

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 Lawhttp://www.ejil.org/pdfs/12/1/505.pdf

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 bùrach.

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.

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.

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!

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:

Havfarm Technology

The Carradale North Disaster

There's some clarity this morning about the disastrous event surrounding the North Carradale Fish "Farm", courtesy of

https://www.bbc.co.uk/news/uk-scotland-glasgow-west-53913708

A few words in this brief report stand out as requiring further comment.

First, we are told that mooring ropes breaking was the cause of this enormous group of cages going adrift. This, if true, is enormously worrying, because modern high tensile ropes are incredibly strong and simply shouldn't break, provided (a) the dimensions have been correct specified and (b) the mooring system has been competently inspected to assess any damage or deterioration. Bluntly, this should not have happened and that it has sends a very serious warning to the regulators, Marine Scotland.

This site is one of the new generation of locations that are alleged to have increased capacity to absorb the pollution that this industry, uniquely, is allowed to dump in the natural environment. These locations are almost certainly to be in ares of increased exposure to strong tidal streams and winter storms. A freedom of information request is going in today to Marine Scotland to discover what if any checking they did on the specifications for the mooring system in this case and to find out if they have carried out any subsequent inspections.

Second, the headline figure of escapes has to be read with the other totals. To the 48,834 escapees must be added 30,616 that died and 125,000 "harvested", i.e. culled in advance of full maturity. At, say 4 kilograms per fish these numbers approximate to 195 tonnes of escaped fish, that will become waste if they fail to survive (and may sire cross breed Norwegian/Scottish progeny if they do), 122.4 tonnes to be taken by road for ensiling and 500 tonnes off to market.

Harvesting early, due to a disaster such as this, is potentially risky to human health, if the salmon in question have recently been dosed with antibiotics or pesticides. At present there is no routine testing by any regulator and no information about whether treatments have recently been used at Carradale North.

Fish Farmers resorting to some extravagant Prose!

An article has just appeared in Fish Farmer Magazine, written by the “leading political journalist” Hamish Macdonell, (ex London Times), which shouldn’t be allowed to pass without comment.

Illustrated by a photograph of two operatives clinging precariously onto the side of a fish cage, without any obvious PPE in sight, it contains some very strange statements, which cry out for some supporting evidence.

The piece begins as follows:

“It didn’t take them long. Almost as soon as the lockdown restrictions started to lift, the anti-fish farm campaigners were back, crowding onto yachts without a thought for social distancing and setting off towards Scotland's salmon farms.

They then started on their usual antics, trying to climb on to pens, filming staff, diving underneath nets and sending drones up to grab video footage from the sky.”

Let’s just picture the scene. A family of what Hamish calls “yachties” have just arrived at the marina in their first trip out of lockdown, as they motor out in their Bavaria 46 father announces the destination for today …. climbing onto fish pens … Really?

“Yet we now have activists, not just willing to break all Covid-related rules designed to protect the population, but apparently desperate to do so. They seem to think nothing of putting salmon farm employees in danger by clambering all over their places of work with no protective equipment and not a thought for whatever they might be bringing with them.”

Break all the rules, Hamish? Every one? Clambering all over?

Let me take a step back from this and tell you a little about what I know, from the perspective of a retired solicitor, former tribunal chair, not exactly renowned for community activism. I am an enthusiast for law and order, but as it happens I also like to see the rules being obeyed by everyone subject to them.

In the ten years or so during which I have been actively monitoring the expansion of fish farming in mid Argyll I have noted thousands of breaches of the rules by fish farming companies, which have been unearthed under the Environmental Information regulations by researchers including myself. Since the commencement of the specialist Crown Office Wild Life and Environmental Crime Unit in 2011 countless events and incidents have been referred to them. How many successful prosecutions have resulted? Not one!

A fairly common practice is for fish farm operators to plan for a significant percentage of the salmon to die of disease or sea lice damage during their incarceration, by stocking the cages with more fish than the permitted biomass limit would suggest. If enough fish don’t die as predicted the result is overstocking.

However, the entire system of regulation currently depends on self reporting by the operating companies. Because of the fundamental principle against self incrimination in criminal law, the reports filed by companies simply aren’t acceptable as evidence in court. When SEPA send in reports to the Crown Office they simply can't do anything.

In the absence of independent inspection we have seen certain individuals going out and collecting footage of what’s going on in and under our west coast fish farms. I know some of them and can assure anyone reading this that they don’t conform to the image usually conjured up by the term “yachty”. Those whom I know are, mainly, possessed of marine biology knowledge and qualifications, courageous, extremely fit and driven purely by commitment. They are not, as they are often accused of being, in the pay of mysterious, usually said to be American, big money people.

To date the efforts of this small band of brave men and women have achieved quite a bit. One image, of a deep pile of dead fish, roughly half an acre in extent rotting away in open air in the Outer Hebrides, went viral and drew attention to the dark side of the industry, the enormous waste that occurs annually when viruses claim, in some cases, up to 40% of stock.

This last weekend drone footage from Loch Creran shows some of the mortality and pollution that results from the Thermolicer machines now active right along the coast. There is no sign of the operatives on the ship being harassed, or even aware of the footage being taken.

But isn’t this illegal? Hamish seems to state that it is. Let’s deconstruct what he says.

“This is a difficult area, not least because our rural police service is stretched and it takes time to react to the often swift interventions of some of more mobile critics. …”

This implies that the activities of activists breaches the criminal law, otherwise what’s it got to do with the police? We do know that fish farm companies have taken to calling the police on a few occasions. Correct me if I’m wrong, anyone, but I’m sure we would have heard if any prosecution had resulted. On the other hand I am aware that complaints have been made to Police Scotland about powers of individual officers being exceeded.

“Also, the law is quite clear. The rights of navigation allow journeys from any single point to another on the sea, except if there is a structure in the way (like a fish farm), in which case, the marine user has to go around the structure – not try to stop, tie up, clamber on board or dive underneath it.”

Yes indeed, we, as members of the public, all have the constitutional right to use the surface of the sea for purposes that include navigation and recreation. Fish farming results in our rights being obstructed, but the Court of Session has held, in the seminal case of Walford v David, that we must tolerate this and find our way safely around.

I don’t, personally, condone people “climbing aboard” but am not aware of any criminal law that might be broken, unless some damage were to be caused.

“The law against aggravated trespass on land (the Criminal Justice and Public Order Act of 1994) also covers a similar offence on marine structures.”

This is a statute that was introduced to control raves, not to clamp down on solitary activists with Gopros in canoes!

It is singularly unfortunate that Hamish’s article came out just before two major environmental catastrophes occurred.

Reports are coming in from Skye of a new, as yet unidentified virus that had reportedly killed a quarter of a million salmon so far. If it turns out to be a mutation of the cardiomyopathy syndrome that did something similar at the same time last year the environment will again be in trouble, thanks to aquaculture. Viral diseases don’t only affect farmed salmon, the real toll is the unseen mortality that goes on beneath the surface, with ailing fish being quickly eaten and thereby contributing to spread.

Secondly there are currently half a million salmon adrift from Carradale North, not a good look for an industry that is desperate, with government support, to install cages in more exposed areas, our inshore lochs being unable to cope with the pollution that is being inflicted upon them.

Finally, in the last few days news has been circulating about an utterly savage assault on an innocent member of the public, a local resident standing on a piece of open land, by a fish farm operator who seems to have felt he shouldn't have been there. I won’t say more at this stage, keep an eye on events locally!

The Use of Formaldehyde in our Scottish Fresh Water Lochs

Formaldehyde is a highly toxic chemical with a history of use in disinfection and serious industrial cleaning. It is a carcinogen and industry guidance for its use requires operatives to wear protective clothing. In recent years operators of fish farms have been experimenting with its use in dealing with saprolegnia, a fungal condition which typically affects fish kept in fresh water, such as aquariums and in their case cages in our fresh water lochs, where salmon smolts are grown for eventual transmission into open cages in the sea.

No doubt as a result of industry lobbying the Scottish Environmental Protection Agency decided to allow its use, with companies having an obligation to disclose how much they were using. The figures reported by the various companies operating in Scotland owned up to a total of 22.4 tonnes of poison being poured into ten Scottish fresh water lochs between April and December 2019.

The start date of this reporting period is interesting, as it coincides with local residents near to some of the lochs in question beginning to experience discomfort, in some case worrying health issues, also notifying SEPA of the presence of vehicles with quantities of the poison in conspicuous containers covered with warning notices.

In May The Ferret drew attention to the issue in a clear, hard hitting article that can be accessed here:

https://theferret.scot/formaldehyde-pesticide-fish-farms-lochs/

This week we have seen a lot of press coverage of this dreadful issue and a petition raised by the indefatigable Corin Smith is reaching its target of 10,000 signatures. You can sign it here:

https://you.38degrees.org.uk/petitions/stop-toxic-salmon-farm-chemicals-polluting-scottish-lochs

The ten farms in question are - in the Highlands, Lochs Lochy, Arkaig, Sheil, Ness and Garry, all MOWI, Shin, Cooke Aquaculture and Damph, Scottish Salmon Company and in Argyll, Tralaig and Avich, Kames and Frisa on Mull, Scottish Sea Farms.

Unlike with open sea sites, these operators do not require any permission from the Crown Estate. They do require two things, planning permission from the local authority and permission from the private land owners. Let’s look at these in turn.

Regarding planning permission, a search on the sites in mid Argyll shows that Kames Fish Farming Limited obtained consents in 1991 for three sites, the two mentioned above plus Loch na Losgain Mor. These were all limited to six years, after which it was anticipated that the sites would be inspected to check for any environmental damage before possibly being renewed. In the event this did not happen. Argyll and Bute Council officials didn’t spot the expiry and the operations in all three lochs continued. Recently, Kames applied for a retrospective consent for Losgain Mor, which was duly granted, despite my request that the Council should ask the operators to commission an Environmental Impact Assessment. On 1 June the Council emailed me as follows:

“In eventuality, and for reasons I have not been able to establish – all of the involved persons having long left the employment of Argyll and Bute Council – this planning condition was not acted upon when it was first breached in November 1997. In fact, this breach did not come to light until at some point in late 2019 by which time the operations had likely gained ‘immunity’ from any planning enforcement action the Council may have wished to take. Nevertheless, the planning authority took this matter up with the operator of the fish farm as soon as the breach of condition was realised. The subsequent application was made in order to support a claim by Kames Fish Farming Limited that their operations were, by that point in time, lawful.”

As at this date the Council has not answered my latest email to them, dated 2 June:

“To remove any possible doubt I have no criticism of your or Ms Scott's handling of matters and fully understand the position the Council is in when faced with this type of application.

My concern from the beginning has been with the environmental effects on a smallish inland loch of the continuous operation of an industrial process over a period of at least twentynine years. I think this is clear from the wording both of my original comment and my email of 13 May. The overall result is that having originally been given a limited consent with a built-in environmental safeguard the applicants have now got an unlimited one with none, thanks to some error for which of course nobody currently in post is responsible. I suggest that such a concern is not unreasonable, but accept that nothing can be done.

You will see from my original comment that I referred also to two other sites, at Loch Avich and Loch Tralaig, where similar situations subsist, with consents for any current operations having long ago expired. It's apparent that Kames are still operating both sites and I expect that you may soon receive applications for further certificates in respect of them. Given that those operations are at the present time strictly illegal I must respectfully ask if the Council might be in a position to take a stronger line regarding the environment? Perhaps you could write to Kames pointing out that the time scale envisaged in 1991 has run out and they should commission an environmental assessment prior to any further application?

Unlike with Loch na Losgain Mor, Loch Tralaig has local residents nearby. They have been reporting health issues to a number of bodies, including the Council via your colleague Mark Parry, seemingly connected to the ongoing use of Formadehyde in attempt to treat outbreaks of saprolegnia, a disease of fish in fresh water. I have annexed a note of the quantities used over a brief period at the end of last year; there are indications that this may have started earlier. There are also reports that the wild fish are no more and that ospreys and otters are no longer present.

Finally, if for any reason you are not aware of it, the Ferret has an interesting article on the issues …”

Regarding the permission from the private owners the position becomes rather interesting. I haven’t researched the ownership of the ten lochs in question, but it is clear that they fall into two groups, those with just one owner, where the loch is entirely enclosed within a large estate and those with several.

Regarding the former, the ownership of the loch bed, the alveus, gives the owner the legal power to grant a lease for the cage anchors to be placed, end of story!

Where there are several owners the position becomes more complicated. Research into Scottish case law introduces us to some interesting history, in which Scottish lairds have conducted their duels in the Court of Session. One such is Dick v the Earl of Abercorn, from 1769, concerning Duddingston Loch, perhaps more famous for the skating minister. Most of these cases concerned the water body, rather than the ground underneath it, which was until recently incapable of yielding any significant financial return.

Regarding the alveus itself, there are two ways a Scots lawyer might see it. Firstly the entire area could be seen as an item of common property, just as, for example, a tenement back court would be. The law on common property is very clear - any owner can block another carrying out an unusual development, such as building a carport in a back court. What about giving a lease for fish cages?

This approach seems on the face of things to be sensible, but the cases suggest a different view has been taken. The ownership of rivers, carrying the rights to fish from the banks, has been long been settled, because obviously the financial implications are huge. If you own a section of the bank, you own the alveus out to the centre line. It seems the same approach will be taken to a loch.

I found the following, in a paper Robin Callander wrote for the Caledonia Centre for Social Development.

“.... Another instance of common property ... is fresh water lochs that are not entirely enclosed within a single ownership. The status of these lochs as common property is due to the sheer impracticality of division in most instances. The owners, whatever the size of their frontage to the loch, own from their frontage to some theoretical mid-point, but in practice have rights all over the loch. …”

On looking further I found that he’s supported by the excellent Dr Jill Robbie, whose thesis can be accessed here:

Dr Robbie's Thesis

At page 104 we find:

“Modern Law

A private loch is defined as a non-tidal, perennial body of water which exists in a definite hollow. ... The water which a loch is composed of is a communal thing and incapable of ownership. If a loch is surrounded by the land of one person, the alveus is wholly owned by that person unless the loch has expressly been conveyed to someone else. If it is surrounded by the lands of several persons, it is presumed they each own a section of the alveus to the medium filum. Ownership passes as a pertinent of the adjacent lands. However, every owner of the alveus has a right to sail and fish over the entire loch due to common interest….”

To date no court has been asked to determine how one might determine the medium filum, the midpoint of a Scottish loch. I’ve seen many over the years and not one has been perfectly circular and capable of being divided like a cake. Even if the anchors for the fish cages are entirely within the slice of cake belonging to one owner, does the “common interest” of the others allow them to object?

As any leases are entirely private matters there’s no way we can find out the terms of any leases in place. One might suggest, to hollow laughter, that morally a landowner should not be permitting a process that may lead to ecological damage or injury to members of the public exercising their rights to roam under the Access Code.