Here is what our legal team have been working on and what’s to come.
There is increasing awareness that residues of pesticides used particularly in agriculture are ending up in rivers and are causing problems for invertebrates and fish.
As part of the work WildFish is undertaking to get to the bottom of what is going wrong here, we have been seeking access to pesticide use records – what herbicides, fungicides and insecticides are being used, in what doses, how frequently, and where?
In November last year, the Information Commissioner’s Office issued a Decision Notice in favour of WildFish that means farmers’ pesticide use records are now subject to freedom of information requests – click here to find out more.
We had hoped that the Health and Safety Executive (HSE) – who previously refused to disclose the records – would recognise that the general public has a right to know what pesticides are being used, on what land and in what quantities. Particularly when those pesticides end up being washed into rivers, lakes and streams and harm aquatic ecosystems.
We suggested in our January update that we might have to go back to the Information Commissioner on HSE’s new arguments, that to ask for farmers’ pesticide records for roughly 100 farms was manifestly unreasonable.
We have now had to do just that.
We are also seeking to intervene in an appeal by HSE that should be heard by the Tribunal this year on a very similar request, in which HSE is fighting to keep pesticide use records secret.
This all sits very uncomfortably indeed for the Government alongside its publication of the UK’s Pesticides National Action Plan, which typically was launched very recently with a fanfare of self-congratulation… more on that soon.
Allied to this, WildFish lawyers are also examining closely the licencing and use of veterinary medicines that end up polluting watercourses – again, more on that in later editions.
There have been developments on the Protected Geographical Indications (PGI) for Scottish farmed salmon.
Readers will recall that WildFish and Animal Equality jointly lost an appeal against a ruling by DEFRA that the word “farmed” could be dropped from the PGI name, with the Tribunal ruling that it was sufficient that the origin of the product was merely identified as ‘Scotland’ and not ‘fish farms in Scotland’. Click here to find out more about protected geographical indication labels and click here to find out more about the tribunal dismissing our appeal.
However, a recent ruling by the Competition Appeals Tribunal in an unconnected case between the supermarkets and salmon farm companies over price-fixing, has suggested that in practice, there is no difference between Scottish farmed salmon and Norwegian farmed salmon.
The law on PGIs is very clear that generic products cannot benefit from a PGI name.
We have therefore asked DEFRA to consider whether or not the PGI name Scottish salmon should not be cancelled, as the law requires for generic products.
We await their response.
Rest assured, we will continue to press until this ridiculous Government-sponsored greenwashing is brought to an end.
As readers will know, a significant proportion of the Scottish salmon farming industry benefits from what WildFish considers to be ‘greenwashing’ provided by the RSPCA Assured label.
In January, we referred RSPCA Assured Limited to the Charity Commission, asking the Commission to investigate whether RSPCA Assured Limited is operating within a charitable remit and reassess whether it should be registered as a separate charity from the RSPCA. We also questioned statements made by RSPCA to a Scottish Parliamentary Committee About the financial relationship between RSPCA and RSPCA Assured. Click here to find out more about our call for an investigation into RSPCA Assured.
The Charity Commission came back to us saying they did not see a role for themselves and stated, somewhat perplexingly, that “the accuracy of any statements made to the Scottish Parliament [by RSPCA] about the financial relationship between the two organisations [RSPCA and RSPCA Assured] is not a matter for the Commission”.
Given that the RSPCA has just made similar potentially misleading statements to the Scottish Affairs Committee in Westminster as it made to the Rural Affairs and Island Committee, we have asked the Charity Commission to look again.
It is the Charity Commission’s role to protect the reputation of the charity sector as a whole and arguably it does that reputation no good if charities can mislead two of the four parliaments of the UK without being asked to correct matters.
Readers will recall that we met with Soil Association and Soil Association Certification Limited in relation to the unhelpful certification of so-called organic salmon farms in Scotland – click here to find out more.
It is difficult to think of a food production system so totally removed from the founding principles of the Soil Association, but, nevertheless, through its certification company, the Soil Association continues to provide a fig leaf of respectability to a proportion of the Scottish salmon farming industry which clearly does not deserve it.
Last year, WildFish asked for copies of all the reports of inspections made by Soil Association Certification of those farms, invoking the Environmental Information Regulations 2004.
Soil Association Certification refused saying it was not caught by freedom of information law. However, WildFish referred the matter to the Information Commissioner who issued a Decision Notice in February that Soil Association Certification is indeed a public authority for the purposes of the 2004 Regulations and is caught by FOI law – click here to find out more.
Soil Association Certification has appealed the Decision and so we will all have to go to the Tribunal later this year to witness the unedifying spectacle of the champion of the organic farming movement seeking to keep secret their inspection reports of so-called organic salmon farms in Scotland.
A sad day for the Soil Association.
In the early 2010s, WildFish was involved in ACAS-mediated negotiations with the fish farming industry, hosted by the Scottish Government, to try to find a way forward in collaboration with the salmon farmers to try to protect wild salmon and sea trout. Those efforts failed, entirely due to the Scottish Salmon Growers Association’s inability to move from its entrenched incorrect position that no harm was being caused by fish farms to wild fish.
After that, our 2015 formal Petition lodged with the Scottish Parliament called on the Scottish Government to strengthen Scottish legislative and regulatory control of marine fish farms to protect wild salmonids of domestic and international conservation importance.
That 2015 Petition triggered two more Scottish Parliamentary Committees, the Environment Climate Change and Land Reform Committee (ECCLR) and Rural Economy and Connectivity Committee (REC), to conduct inquiries and issue reports, both published in 2018, both concluding that stronger regulatory control of salmon farms was needed to protect wild salmonids as a priority – “the status quo is not an option”.
One of the results of the 2018 REC Committee report was the charging of SEPA by Scottish Government to come forward with controls on sea lice on Scottish salmon farms for the purpose of protecting wild salmonids from the appalling sea lice infestations that we see.
SEPA has taken five years to come forward with some very weak controls indeed – and WildFish has already referred those controls to Environmental Standards Scotland (the post-Brexit environmental watchdog in Scotland) for their investigation – click here to find out more – but just before Christmas the first Notices of Variation were served by SEPA on the salmon farming industry to change the licences under which they operate.
Be in no doubt that the controls proposed by SEPA are small and are highly unlikely in themselves to protect wild salmonids from salmon farm sea lice – but they are better than nothing.
However, the reaction of the fish farmers shows this appalling industry in its true colours.
The industry is now in open revolt against SEPA and has issued 210 formal appeals to Scottish Ministers, drowning the Scottish administration in reams of paperwork signed off by large corporate law firms – click here to find out more.
Those appeals will be heard by the Planning and Environmental Appeals Division of the Scottish Government (known as the DPEA). You can search for the appeal documents here: Scottish Government – DPEA – Case List
WildFish lawyers have already submitted a detailed representation against the appeals and we urge all fisheries and conservation bodies to stop any form of co-operation with the industry while these appeals continue.
WildFish wrote to the Environment Agency in September last year when it discovered that the abstraction licence on the River Chess had been resurrected, apparently to manage flood risk, under a secretly formulated “section 20 agreement” between the water company and the Agency.
After we contacted the Agency, it provided copies of a frankly inadequate environmental assessment prepared after we sent our letter. But the Agency agreed to put the agreement on hold.
But there seems to be a happy ending for the Chess.
The Agency is now proposing to revoke the licence for abstraction from Chesham Pumping Station, with a promise that there will be no further abstraction and an admission that flow and flood risk are “particularly complex”.
We now just need to get to the bottom of what is happening on the other rivers where the same methodology has been applied. Watch this space.
We have just sent a formal “letter before action” to Buckinghamshire Council, copying in Anglian Water and the housebuilder, to put the Council on notice of a forthcoming legal challenge to house-building plans where we consider that there is inadequate and insufficient sewage treatment capacity to support the proposed new houses.
We argue in our letter that the Council has simply got it wrong in approving “reserved matters” such as how sewage from the development would be dealt with at the over-stretched and failing ‘water recycling works’ at Buckingham, after Ofwat has refused to approve investment at the works. Crucially, the decision by the Council contains errors of law including swapping-in an amended and more lenient condition from a separate planning permission and failing to screen for environmental impact.
This seems to us to be a case which illustrates perfectly just how poorly the planning system currently considers whether there is sufficient sewage treatment capacity when permissions are granted for large numbers of new houses.
We will now be considering taking the next step: lodging a formal claim at the High Court.
We have submitted our response to the Water Commission’s “Call for Evidence” which can be found here [link].
In short, we believe that the consultation is far too broad and confuses countless aspects of the water industry, often with random and generalised references and very little close scrutiny. The inquiry involves areas that we believe are way beyond the remit of a water industry review, including possible changes to the Water Framework Directive (WFD), hinting at an attempt to dilute the obligations under WFD that water bodies should meet what is termed ‘good ecological status’.
Overall, we do not agree that the system is “broken” or that the time is right to call for re-nationalisation. WildFish believes that the solution is far more ‘boring’. Simply put, the regulators need to do their jobs properly, by implementing and enforcing the existing law.
By and large, the goals of protecting the environment and ensuring sufficient supply of water and treatment of sewage can be attained by using existing law, perhaps with some strengthening and minor alterations to the law.
We do not need and can ill-afford a prolonged and major upheaval in the system.
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